Summary
reviewing alleged claims of non-compliance with BOP procedures and noting that in absence of prejudice, there could not be a violation of due process
Summary of this case from Mendez v. BellOpinion
05 Civ. 4045 (RWS).
August 22, 2006
ZACHARY WILLIAMS Petitioner Pro Se # 26892-037 F.C.I. Otisville Otisville, NY.
HONORABLE MICHAEL J. GARCIA United States Attorney for the Southern District of New York Attorneys for Respondent New York, NY, By: MICHAEL R. HOLDEN, Assistant US Attorney Of Counsel.
OPINION
Petitioner pro se Zachary Williams ("Williams" or "Petitioner"), currently incarcerated at Federal Correctional Institution, Otisville, New York ("FCI Otisville") seeks by writ of habeas corpus, pursuant to 28 U.S.C. § 2241, to challenge the disciplinary procedures to which he was subjected. The respondent, Craig Apker, has moved to dismiss the petition, pursuant to Fed.R.Civ.P. 12(b) (6) on the grounds that the procedures employed do not violate Petitioner's constitutional right to due process of law. For the reasons set forth below, Respondent's motion is granted, and Petitioner's motion is denied in its entirety.
Background
Williams is presently incarcerated for conspiracy to distribute and to possess with intent to distribute heroin and cocaine and for using a telephone in the commission of a felony. His sentence is scheduled to expire in the year 2016.
Williams brings this petition to challenge a disciplinary decision issued by a Disciplinary Hearing Officer ("DHO") based upon a determination that Williams committed the prohibited act of extortion by improperly extracting a payment from another inmate, Leonard Gould ("Gould").
On March 25, 2003, an Incident Report was prepared by Lieutenant Benfer, which charged Williams with having "extorted another inmate." Def. Ex. B at 1. The Incident Report referenced Code 204, entitled "extortion, blackmail, protection," a regulation that prohibits "[d]emanding or receiving money or anything of value in return for protection against others, to avoid bodily harm, or under threat of informing." 28 C.F.R. § 541.13(a). According to the Incident Report, inmate Gould stated that Williams, along with another inmate, Santos Estrada, "attempted to take over [Santos Estarada's brother George Estrada's] extortion racket after [George Estrada] was placed in SHU on 12-29-03," and Williams "instructed inmate Gould to send $1750.00 to Mr. Kevin Williams" in Baltimore, Maryland. Def. Ex. B at 1. The Incident Report also stated that this transaction appeared on Gould's bank statement. Id. Additionally, the Incident Report indicated that Williams' pre-sentence investigation report and his visiting list showed that Kevin Williams was his brother and had visited him and that Kevin Williams' last address was in Baltimore. Id.
On March 26, 2003, the Bureau of Prisons (the "BOP") referred the matter to the United States Attorney's Office for a criminal investigation. See Def. Ex. C. The issuance of the Incident Report and the associated investigation were suspended pending the completion of the criminal investigation. Def. Ex. B at 1. Williams was not served with the Incident Report or interviewed in connection with the investigation of the Incident Report at that time. Id.
On June 16, 2003, the United State Attorney's Office advised that it was declining to prosecute, and referred the matter back to FCI Otisville for disciplinary action. Def. Ex. B at 2, C. On that same day, according to Respondent, Lieutenant Hill of FCI Otisville investigated the charge in the Incident Report and delivered the Incident Report to Williams. Williams contests that Lieutenant Hill investigated the charge, and contends that Lieutenant Benfer conducted the investigation. Def. Ex. B at 1.
On June 19, 2003, Ken Walicki, the chairperson of the Unit Discipline Committee (the "UDC") for Williams' disciplinary case, advised the Warden that the matter had been suspended pending review by the United States Attorney's Office and requested permission to proceed with Williams' initial hearing, which the Warden granted. Def. Ex. B. On June 20, 2003, the initial hearing was held before the UDC. The UDC, "[d]ue to the seriousness of the charge" against Williams, referred the matter to the DHO. Def. Ex. D. Williams was given notice of a hearing before the DHO and was advised of his rights with respect to that hearing. Def. Ex. D, E, F.
On September 29, 2003, the hearing before the DHO commenced. Def. Ex. D. The DHO had before him, the Incident Report and the underlying SIS investigative report. Id. Williams declined to have a staff member represent him at the DHO hearing. Id. Inititally, Williams requested permission to call five witnesses before the DHO, but he subsequently waived that request except as to Gould and to Richard Rubinkowski, both of whom were at that time no longer inmates at FCI Otisville. Id. Williams invoked his right to remain silent; however, he submitted a "Typed Written Statement to DHO" setting forth numerous procedural arguments. Def. Ex. G.
Following the submission of Williams' statement, the DHO adjourned the disciplinary hearing. Def. Ex. E at 1. The hearing resumed on October 17, 2003, and Williams again invoked his right to remain silent. Id. The DHO denied Williams' request to call Gould and Rubinkowski as witnesses, on the ground that they were adverse witnesses and their statements were set forth in the SIS investigative report. Id. at 1, 3.
During the course of the hearing, it came to the DHO's attention that the Incident Report contained a "typographical error" in that it indicated that George Estrada had been placed in the SHU on December 29, 2003, rather than on December 29, 2002. Id. The DHO corrected the Incident Report and adjourned the hearing again, giving Williams the opportunity "to prepare an additional defense." Id. When the hearing before the DHO resumed on October 20, 2003, Williams once again invoked his right to remain silent. Id. Williams submitted an "Additional Typed Written Statement to DHO," wherein he again set forth procedural arguments. At the close of the hearing, the DHO reserved decision. Def. Ex. H.
On December 5, 2003, a report setting forth the DHO's decision was delivered to Wiliams. Def. Ex. E at 4. The DHO summarized the disciplinary charge against Williams and the procedural background, see id. at 1, and concluded that the prohibited act of extortion was committed as charged, see id. at 2. Relying on the Incident Report and the SIS investigative report, the DHO found that Williams had committed extortion against Gould on January 14, 2003. Id. at 3. According to the DHO, the Incident Report indicated that Gould had stated that "[Williams] and Santos Estrada attempted to take over for Estrada's brother's extortion racket after he was placed in the Special Housing Unit" on December 29, 2002.; that Williams "instructed inmate Gould to send $1750.00 to Mr. Kevin Williams, Baltimore[,] Maryland"; that Williams' pre-sentence investigation report and his visiting list showed that Kevin Williams was his brother and had previously visited him; and that the $1750.00 transaction appeared on Gould's bank statement. Id.
The DHO also stated that "it was documented in the SIS investigation and corroborated that inmate George Estrada was extorting inmate Gould for $1750.00 per month." Id. The DHO noted that Williams had invoked his right to remain silent at each stage of the hearing and had failed to provide "information to refute" the facts evidenced by the foregoing documents. Id.
The DHO found that "[i]t was clear from the investigation [that] inmate Gould was being extorted by George Estrada for a sum of $1750.00," and that after George Estrada was placed in the SHU "[Williams] approached inmate Gould, knowing he was previously being extorted, and made him pay [Williams] the same sum of . . . [money to his] brother in Baltimore." Def. Ex. E at 3. The DHO concluded that this set of circumstances amounted to more than coincidence and stated that Gould "was vulnerable and [Williams] continued the extortion of his based upon his obvious fear." Id. The DHO also concluded that "Gould would have nothing to gain by not being truthful about this."
Based upon his determination that Williams had committed the charged act of extortion, the DHO imposed the following penalties: (1) disallowance of 27 days of "good conduct time"; (2) six months' loss of commissary privileges; and (3) 30 days of disciplinary segregation, which was suspended pending 180 days of "clear conduct" on Williams' part. Id. at 4.
Williams challenged the DHO's decision by appealing to the BOP's regional office, which denied the appeal, finding that the DHO had "reasonably determined [that Williams had] committed the prohibited act" and that the record reflected "substantial compliance" with applicable procedures. Def. Ex. I. Thereafter, Williams appealed to the BOP's central office, which concurred with the regional office's decision. In its denial of Williams' appeal, the central office added that Williams' "claims of perceived procedural errors do not rise to the level of due process violations. Def. Ex. J. Applicable Standards
A district court is authorized pursuant to 28 U.S.C. § 2241 to grant a writ of habeas corpus whenever a petitioner is in custody in violation of the Constitution or laws or treaties of the United States. A petition for habeas corpus may be used to challenge incarceration as being in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2241.
Habeas review is available only where the petitioner is "in custody" for the alleged violation. 28 U.S.C. §§ 2241, 2242, 2243. Therefore, the only sanction imposed by the DHO that is properly the subject of review is the revocation of 27 days of "good conduct" credit. The imposition of 30 days of disciplinary segregation, has expired under its own terms. The six-month suspension of commissary privileges does not amount to "custody" and therefore is not the subject of habeas review.
It is well-established that "inmates retain due process rights in prison disciplinary proceedings." Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) (outlining the basic procedural protections accorded to inmates subject to significant disciplinary punishment). To meet the requirements of procedural due process, prison disciplinary proceedings resulting in the loss of good conduct credit must include: (1) advanced written notice of the alleged violation; 2) an opportunity when consistent with institutional goals to call witnesses and present documentary evidence in his defense; 3) a "written statement of the factfinders as to the evidence relied upon and reasons for the disciplinary action"; 4) an impartial factfinder; and 5) "some evidence" in support of the decision by the prison disciplinary board to revoke good-conduct credits.Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-55, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1986); see also Wolff v. McDonnell, 418 U.S. 539, 563-66, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974).
As the Supreme Court discussed in Hill, the "some evidence" standard is met so long as:
there was some evidence from which the conclusion of the administrative tribunal could be deduced. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.Hill, 472 U.S. at 455-56.
Discussion
Williams challenges the disciplinary proceedings on various grounds, which he contends violated his right to due process under the Constitution. Specifically, Williams contends that his Fifth Amendment right to procedural due process was violated in the following respects: (1) Lt. Benfer played both the role of the employee reporting his misconduct and that of investigating officer; (2) there was improper delay in the issuance of the incident report; (3) the timing of the hearing before the UDC was improper; (4) the referral of the charge to the United States Attorney's office was improper; (5) Williams' request to call Gould and Rubinkowski as witnesses was improper; (6) the Incident Report improperly referred to Williams as "you"; (7) the Incident Report did not reference facts sufficient to give Williams notice; (8) the UDC was improperly constituted; and (9) various aspects of the Incident Report rendered it improper.
Williams first contention — that Lt. Benfer improperly played the role of both the employee reporting Williams' misconduct and that of the investigating officer — is without merit. Williams relies upon Program Statement 5270.07 to support his contention that Benfer performed both a reporting and an investigating role in his charge. Program Statement 5270.07 states, in relevant part, that: "[w]hen it appears likely that the Incident may be the subject of criminal prosecution, the Investigating Officer shall suspend the investigation. . . ." Because an internal memorandum indicates that the "incident report was suspended by Lt. Benfer," Williams surmises that Benfer must have been performing his obligations as the investigating officer under Program Statement 5270.07.
As an initial matter, it bears noting that the suspension of the disciplinary process referred to in the memorandum upon which Williams relies was a suspension of the issuance of the Incident Report, not a suspension of the subsequent investigation by the investigating officer. As such, it is concluded that the fact that Lt. Benfer suspended the issuance of the incident report in no way establishes any involvement on his part in conducting the investigation. Additionally, even if the matter was suspended by the reporting employee rather than by the investigating officer, Williams has not demonstrated that such conduct violated his constitutional right to due process as set forth in Wolff.
Williams' contention that there was improper delay in the issuance of the Incident Report is similarly without merit. Williams relies on 28 C.F.R. § 541.15(a), which requires that an inmate receive a copy of the disciplinary charge and provides that the written charge is "ordinarily" given within 24 hours of when staff members become aware of the underlying infraction. The inclusion of the word "ordinarily" indicates that there may be situations in which this time table cannot be met. Therefore, where, as here, a criminal investigation intervenes, a suspension of the disciplinary process is fully consistent with the requirement that the BOP's investigation be suspended until prison authorities are advised that they may proceed. See 28 C.F.R. § 541.14(b) (1); United States v. Delgado, No. 97 Cr. 0007 (BSJ), 1997 WL 811540, at *1 n. 2 (S.D.N.Y. Apr. 8, 1997) ("[A]n investigation is suspended when it appears likely that an incident may be the subject of criminal prosecution. A prison staff investigation does not resume until the agency responsible for the criminal investigation advises that further staff investigation may occur.").
The only constitutional requirement implicated by the notice of disciplinary charges is that the inmate receive notice of the charges against him 24 hours prior to the hearing. See Wolff, 418 U.S. at 563-64. Williams has not argued that this requirement was violated. Given that the initial hearing took place on June 20, four days after Williams was served with the Incident Report, it is concluded that the advanced written notice of the charges received by Williams was consistent with the requirements under the Fifth Amendment and Wolff.
Similarly, Williams fails to demonstrate that any regulation or constitutional requirement was violated by the timing of the UDC hearing. Referencing 28 C.F.R. § 541.15(b) and the associated BOP Program Statement, Williams argues that the UDC was not permitted to hold the hearing on June 20, 2003, because, by then, more than three days had elapsed since prison staff had become aware of his involvement in the alleged misconduct.
As an initial matter, it bears noting that Petitioner has not argued how, if at all, the timing of the initial hearing prejudiced him. In the absence of such arguments, the Court fails to see how the alleged delay amounts to a violation of Williams' due process rights.
Additionally, 28 C.F.R. § 541.15(a), much like 28 C.F.R. § 541.15(a), merely provides that an initial hearing "ordinarily" takes place within three days; it does not prohibit holding the hearing thereafter. Indeed, pursuant to 28 C.F.R. § 541.15(k), the UDC may extend any time limit refereced in 28 C.F.R. § 541.15 where there is "good cause" to do so. While, according the to the related BOP Program Statement, see BOP Program Statement 5270.07, ch. 6, "[t]he warden's approval is required for any extension beyond five work days," such permission from the Warden was granted in this case on June 19, 2003. See Def. Ex. C. Accordingly, even if a delay in holding the initial hearing would otherwise support a due process claim, the time for holding the hearing was duly extended.
Williams' suggestion that the referral to the United States Attorney's Office was improper is also without merit. Given that the matter was not accepted for prosecution, see Def. Ex. B at 2, Williams plainly is not "in custody" as a result of the referral, and thus he may not invoke the Court's habeas jurisdiction to challenge the referral. See 28 U.S.C. §§ 2241, 2242, 2243.
Williams next contends that his due process rights were violated by the DHO's denial of his request to call as witnesses inmates Gould and Rubinkowski. As stated above, an inmate should be permitted to call witnesses and present documentary evidence.Wolff, 418 U.S. at 566. However, this right is not absolute, but rather is subject to the "legitimate safety and correctional goals of the institution." Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999).
Williams has not challenged the DHO's grounds for not calling Gould and Rubinkowski, i.e., that those witnesses were adverse to Williams and that their statements were reflected in the SIS investigative report. This decision comported with the inmate discipline regulations, according to which "[t]he reporting officer and other adverse witnesses need not be called [by the DHO] if their knowledge of the incident is adequately summarized" in materials supplied to the DHO. See 28 C.F.R. § 541.17(c). Additionally, Williams has not established how he stood to benefit if Gould or Rubinkowski had been called to testify before the DHO. Accordingly, the DHO's decision not to called Gould or Rubinkowski as witnesses does not rise to the level of a due process violation.
Williams' further suggestion that the Incident Report was unclear because it used the word "you," rather than referencing Williams by name, is also meritless, as is Williams' contention that the Incident Report did not reference sufficient facts. Williams cannot seriously contend that the use of the personal pronoun was confusing, let alone that it rises to the level of a constitutional violation. Similarly, the Incident Report put Williams on notice as to the gravamen of the charge against him — i.e., that he had attempted to take over George Estrada's "extortion racket" when Estrada was placed in the SHU and that Williams had instructed Gould to send $1,750.00 to Williams' brother. Accordingly, it is concluded that Williams received adequate notice of the substance of the charge in accordance with the due process clause.
Williams also challenges the reference in the Incident Report to the date of December 29, 2003, stating that it is unlikely that Gould could have predicted that George Estrada would be in SHU on December 29, 2003 so that he could take over the extortion racket. The reference to this date was obviously a typographical error, which was later corrected to December 29, 2002. The DHO hearing was adjourned in order to give Williams an opportunity to prepare an additional defense, and Williams has not contended that the technical change caused any prejudice. See Powell, 953 F.2d at 750 (applying harmless error to prison disciplinary proceedings).
Williams also argues that the UDC was improperly constituted in violation of his right to an impartial factfinder. Specifically, Williams contends that one of the members of the UDC, Ms. Henry, should not have sat on the UDC because Rubinkowski had previously made a "similar complaint to [her] concerning [George] Estrada." Pet. Mem. at 18. Relying on Program Statement 5370.07, ch. 6, which references 28 C.F.R. § 541.15, Williams points out that a UDC member "may not be . . . a witness to the incident, or play any significant part in having the charges referred to the UDC." 28 C.F.R. § 541.15. Even if Ms. Henry did, as Williams suggests, previously receive a complaint regarding George Estrada, this fact does not establish that she was a witness to any incident or that she played any role in having the charge referred to the UDC.
With respect to the UDC, Williams also contends that the UDC members must have prejudged his case since they did not require him to leave while they deliberated and did not "disagree amongst themselves in [his] presence." Pet. Mem. at 19-20.
Williams provides no reason to believe that the UDC members prejudged his case. Additionally, the regulation upon which Williams relies, 28 C.F.R. § 541.15(c), does not require that the inmate be excluded from deliberations, but rather provides that the inmate is entitled to be present except "during deliberations." 28 C.F.R. § 541.15(c).
Finally, Williams makes reference to an alleged violation of his "equal protection rights." Pet. Mem. at 4, 23. Given that Williams does not explain the nature of this allegation, it too is dismissed.
As set forth above, Williams' challenges to the disciplinary proceedings do not constitute constitutional violations. Additionally, there is, at a minimum "some evidence" supporting the DHO's conclusion that the Williams extorted the $1,750.00 payment from Gould. Accordingly, Defendant's motion for summary judgment is granted in its entirety.
Submit judgment on notice.
It is so ordered.