Opinion
Case No. 7:09CV00264.
July 27, 2009
MEMORANDUM OPINION
Petitioner, a federal inmate proceeding pro se, brings this action as a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Petitioner primarily challenges the validity of a prison disciplinary conviction for which he lost earned good conduct time. Upon review of the record, the court finds that petitioner is not entitled to relief under § 2241.
Background A. Procedural History
Petitioner Jimmy Raymond Blow filed this § 2241 petition in September 2007 in the United States District Court for the Eastern District of California, while he was incarcerated at the United States Penitentiary ("USP") in Atwater, California. In his petition, Blow asserts that there was insufficient evidence for the Disciplinary Hearing Officer ("DHO") to find him guilty of engaging in or encouraging a group demonstration in relation to an incident during his incarceration at the United States Penitentiary in Beaumont, Texas ("USP Beaumont"). As relief, Blow requests expungement of the disciplinary conviction and restoration of good conduct time that he forfeited as a penalty. Blow's petition also includes a second claim, alleging that BOP officials have failed to protect him from violence at the hands of racist white inmate gang members after he informed officials that members of this group had made threats against him.
Blow named the Bureau of Prisons ("BOP") as the respondent and so failed to accomplish personal service on the proper respondent to his petition, the warden of USP Atwater. Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). However, in his answer to the petition, the respondent waived this defect. (Answ. 2.) Respondent also does not argue that Blow failed to exhaust his administrative remedies as required to proceed with this habeas action. (Id.)
The respondent filed an answer to Blow's § 2241 petition on March 17, 2008. Blow filed two motions that the court construed as requesting interlocutory injunctive relief (Dkt. Nos. 8 and 14). On August 6, 2008, United States Magistrate Judge Theresa A. Goldner issued Findings and Recommendations (Dkt. No. 15) pursuant to 28 U.S.C. § 636(b)(1), finding that Blow had not demonstrated any grounds on which interlocutory injunctive relief was warranted. Blow did not file objections. He did file a lengthy traverse to respondent's answer with many exhibits attached (Dkt. Nos. 18 and 19). Almost immediately thereafter, on or about September 3, 2008, Blow was transferred to the United States Penitentiary in Jonesville, Virginia, ("USP Lee"), within the territorial jurisdiction of this court. By order entered June 30, 2009, the California district court transferred Blow's case to this court for disposition.
The court's order entered January 15, 2008 informed Blow that once the respondent answered the petition, he would have thirty (30) days in which to file a traverse.
The magistrate judge's report also granted Blow an extension of time in which to file a traverse to the respondent's answer.
B. Facts and Allegations
On April 10, 2006, at approximately 11:10 a.m., a group of inmates at USP Beaumont boycotted the chow hall and refused to eat the lunch meal. During the boycott, USP staff took videotape footage outside Unit Two of the inmates believed to have instigated the boycott. Blow was observed and videotaped with this group of inmates during the noon meal. In the weeks that followed, BOP officials conducted further investigation of the boycott. The May 17, 2006 report of the investigation included the determination that Blow had been one of the participants of the boycott, based on his presence in the videotape.
Redacted investigative reports relied on by the DHO in Blow's disciplinary hearing indicated even before the April 10, 2006 food boycott at USP Beaumont, officials had received intelligence suggesting that white inmates were planning some sort of demonstration, specifically a boycott of the "mainline" lunch meal that day. The information indicated that white inmates would skip the meal and sit in the compound to protest a shake down for weapons and confiscation of excess inmate property that had occurred in March. As inmates working at Unicor were released for mainline, it became evident that most of them were skipping the meal and returning to their housing units. Officials observed a large group of white inmates near Unit Two and videotaped this group's activity. Various sources later identified this group as being instigators and participants in the strike. The videotaped inmates were sitting and standing on the sidewalk while the noon meal was in progress. Information from the MealTrack system indicated that two-thirds of the inmate population did not participate in mainline, and the institution was put on lock down at 1:30 p.m. Some inmates interviewed after the boycott said the incident was also motivated by changes at Unicor. Inmates named several gangs, black and white, who were allegedly involved in supporting the boycott. The investigative summary also included a brief statement taken from Blow, mentioning his black cell mate and denying that he was in any gang. (See gen. Answ. Ex. 3.)
On May 17, 2006, Blow was notified in writing that as a result of information developed during the investigation, he had been charged with a prison disciplinary infraction related to the April 10, 2006 food boycott: engaging in or encouraging a group demonstration. A disciplinary hearing on this charge was conducted on June 9, 2006. Blow requested and was granted a staff representative to help him prepare and present his defense. The report of the disciplinary proceeding indicates that Blow did not request any witnesses.
During the disciplinary hearing, Blow denied that he had participated in the food boycott on April 10, 2006. The DHO found that this statement was not credible, based on the written investigation report and photographic evidence that Blow had been with the inmates identified as having instigated, encouraged, or participated in, the boycott. The DHO relied on this evidence to find that Blow was guilty of the charge and then penalized him with thirty (30) days of disciplinary segregation and the loss of twenty-seven (27) days of good conduct time ("GCT"). The conviction and penalty were upheld throughout the administrative remedy proceedings that followed.
Discussion
To prove that he is entitled to relief under § 2241, petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." § 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21 (1975) (finding that "[a] necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination by the federal court that [his] custody violated the Constitution, laws, or treaties of the United States"). Blow asserts that his due process rights were violated during the prison disciplinary hearing on April 10, 2006, because the evidence against him was inadequate to support the finding of guilt.
A. Due Process
While convicted prisoners relinquish many rights upon being incarcerated, the due process clause of the Fourteenth Amendment mandates several procedural safeguards before an inmate may be punished with the loss of earned good conduct time for violating prison disciplinary rules. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). In such circumstances, prison officials must provide the inmate with (1) advance written notice of the charge against him; (2) a written record of the disciplinary committee's findings and the evidence relied on in convicting him; and (3) in limited circumstances, the right to call witnesses. Id. at 564-70. Furthermore, an inmate is entitled to have the charges against him decided by a fair and impartial tribunal. Id. at 570-71. The United States Supreme Court has specifically refused to require that facts in support of prison disciplinary charges be proven beyond a reasonable doubt, even where earned good conduct time is at risk. Superintendent v. Hill, 472 U.S. 445, 456 (1985) ("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") (citations omitted). A reviewing court's determination as to whether a prison disciplinary hearing officer's finding comports with the Hill evidence standard "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 hearing officer. Id. at 455.
It is undisputed that Blow was afforded each of the due process elements required under Wolff. He received written notice of the charge on May 17, 2006, more than 24 hours before the hearing. The hearing on June 9, 2006, was conducted by an impartial officer who was not involved in the incident at issue. Blow appeared before the DHO, had an opportunity to call witnesses and to present documentary evidence, although he did not do so. As stated, he was appointed a staff representative to assist him in preparing and presenting his defense. This representative, his supervisor at Unicor, informed the DHO that Blow was a good worker and never caused problems. Finally, on June 11, 2006, Blow received a copy of the DHO's report, which included a written statement of the evidence on which the DHO relied in reaching the finding of guilt.
Blow claims in his § 2241 petition that the evidence at the hearing was not sufficient to support his disciplinary conviction. More specifically, he alleges facts that he explained to the DHO on which he believes he should have been found not guilty of the disciplinary charge.
First, Blow states that as a person whose white mother was married to a black man, Blow had been ostracized by the group of "white supremacy" inmates who instigated the boycott. Blow had also been befriended by a black inmate and shared a cell with him, another fact that precipitated harassment of Blow by the "white supremacy" inmates. Based on this information, Blow argues that the inmates would not have allowed him to participate in their boycott.
Second, Blow maintains that he had a legitimate reason to be outside Unit Two at the same time and in the same location where the boycotting inmates were videotaped. He states that he lived in Unit Two, ate lunch there on April 10, 2006, waited outside the unit as he routinely did until the Unicor work-call, and then had to walk past the boycotting inmates in order to get to his Unicor workplace on the other side of the complex. His Unicor work supervisor was his staff representative and verified at the hearing that Johnson had a good work history with Unicor.
Blow claims that he explained these defenses and his problems with the white supremacist inmates to prison staff members who investigated the boycott incident, but that his statements to investigators were not mentioned by the DHO as part of the evidence relevant to the disciplinary charge. Blow allegedly asked early in the stages of the disciplinary proceeding that he be allowed to call his black cell mate as a witness, but this request was not granted because of security concerns. He was also denied the assistance of the first staff representative he requested — a counselor who allegedly had heard other inmates make statements on Blow's behalf and had agreed to collect written statements from them. When this counselor did not show up at the hearing, Blow informed the DHO that he wanted a chance to collect and present other evidence, including the videotape and statements from other inmate witnesses. The DHO said the other evidence Blow described, concerning his problems with the white supremacist inmates, was not relevant to the hearing. Blow complains that he was denied an opportunity to review the evidence against him, and he now wants to be given a polygraph test concerning his involvement in the boycott. He argues that his version of events as related to the DHO "establishes a greater weight of my innocence of this charge than a mere photo showing [him] either standing in front of [his] housing unit or going to work."
Blow is asking this court to review his alternative explanation for the evidence on which the DHO relied, to re-evaluate the evidence as a whole, and to substitute the court's judgment for the judgment of the DHO. Under Hill, the court has no authority to reweigh the evidence in this manner. The DHO stated in his findings that he had reviewed investigative reports and that his determination of Blow's guilt was based on photographic and written aspects of that evidence. The information the DHO cited constituted "some evidence from which the conclusion of the administrative tribunal could be deduced," as required underHill. 472 U.S. at 455. The hearing itself provided the required protections under Wolff, as Blow had an opportunity to marshall evidence to persuade the impartial decision maker that he did not commit the prohibited conduct. 418 U.S. at 564-70. The explanations Blow offered during the hearing, regarding the problems he had been facing with the white supremacist inmates, were not persuasive enough in the eyes of the DHO to outweigh the photographic evidence and investigative report. The court cannot now reexamine all possible evidence or reweigh the evidence presented at the hearing so as to make a new determination of guilt or innocence, as Blow contends. Hill, 472 U.S. at 455. Thus, the court finds that Blow is not entitled to relief under § 2241 as to the first claim in his petition.
B. Failure to Protect
In his second claim, Blow asserts that even after he informed specific prison officials at USP Beaumont that white supremacist inmates had threatened him because of his black step-father and black cell mate, officials failed to take steps to protect him from violence at the hands of this group of inmates at Beaumont or inmates with similar beliefs at other institutions where he was later transferred. After his disciplinary conviction in 2006, officials moved him to the Special Housing Unit ("SHU") along with white supremacist gang members. He alleges: "These inmates did indeed attack me. I had to fight for my life[.] I was rescued by the aid of staff[.] I am sure there should be video documentation of this incident." He alleges that the problems with white supremacist inmates cropped up again while he was at the Transfer Center in Oklahoma; officials there had to move him to a cell away from a white gang member who was making threats against him. Similar problems allegedly arose at USP Atwater, where he "had to be moved from cell to cell because . . . problems in Beaumont [had] followed [him]" to California. As relief on this claim, Blow states that he wants to be transferred to a prison facility where he feels safe. He would also like to have his prior status as a medium security inmate restored.The core of a habeas corpus action is a request to get out of jail immediately, or sooner than currently scheduled. See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). "[C]onstitutional claims that merely challenge the conditions of a prisoner's confinement . . . fall outside of that core" and must be raised in a civil action, pursuant to 42 U.S.C. § 1983 (by state prisoners) or Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (by federal prisoners). Nelson v. Campbell, 541 U.S. 637, 643 (2004); see also Muhammed v. Close, 540 U.S. 749, 750 (2004) ("Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus," whereas "requests for relief turning on circumstances of confinement may be presented" in a civil rights action); Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (finding that prisoner's claim for entitlement to work release was not appropriately phrased as § 2241 claim, but should be addressed in civil rights action).
The United States Court of Appeals for the Seventh Circuit offered this description of the difference between a habeas claim and civil rights claim:
If the prisoner is seeking what can fairly be described as a quantum change in the level of custody — whether outright freedom, or freedom subject to the limited reporting and financial constraints of bond or parole or probation, or the run of the prison in contrast to the approximation to solitary confinement that is disciplinary segregation — then habeas corpus is his remedy. But if he is seeking a different program or location or environment, then he is challenging the conditions rather than the fact of his confinement and his remedy is under civil rights law, even if, as will usually be the case, the program or location or environment that he is challenging is more restrictive than the alternative that he seeks.Graham, 922 F.2d at 381 (emphasis added).
In this second claim of his § 2241 petition, Blow is not alleging any ground on which he is entitled to a shorter term of confinement or on which the criminal judgment under which he is being detained by the BOP is invalid. Rather, he is challenging the environments in which Bureau of Prisons ("BOP") officials have incarcerated him. He asserts that they have failed to take appropriate steps to house him under conditions where he was safe from threats and potentially violent actions by racist inmates. As the core of Blow's claim is clearly not concerning the fact or the duration of his incarceration, his claim is not properly before the court in this habeas proceeding, and as such, must be dismissed without prejudice.
Because Blow is not represented by counsel, the court has an obligation to construe his allegations liberally. See Gordon v. Leeke, 574 F.2d 1147, 1152-53 (4th Cir. 1978) (finding that ifpro se litigant alleges possible actionable claim, court should "afford him a reasonable opportunity to determine the correct person or persons against whom the claim is asserted, advise him how to proceed and direct or permit amendment of the pleadings to bring that person or persons before the court"). Thus, despite his labeling of this action as a habeas petition, the court could construe Blow's second claim as a civil rights action underBivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), asserting that particular prison officials violated his constitutional right to be protected against acts of violence at the hands of other inmates. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). One form of relief under Bivens is injunctive relief, which is essentially what Blow seeks here: court orders directing prison officials to house him in a safer environment.
The court does not find such a construction of Blow's claim to be warranted, however. All of the allegations in his submissions now before the court involve events at BOP prison facilities in other states that occurred more than a year ago. He has submitted no evidence indicating that the same safety concerns exist at USP Lee, where he has been incarcerated since September 2008. Moreover, even if his safety problems have continued, he has not made them part of this lawsuit or offered any indication that he has exhausted administrative remedies regarding such concerns at USP Lee as required under 42 U.S.C. § 1997e(a). Until he has complied with § 1997e(a) and given USP Lee officials an opportunity to address his safety needs, he may not pursue aBivens action against them, based on their alleged failure to protect him.
If Blow believes that officials at USP Lee have not adequately protected him from a known risk of harm from other inmates, as alleged with regard to prison facilities where he was previously housed, he may raise such claims by filing a new, civil rights action under Bivens, provided that he has exhausted administrative remedies.
C. Pending Motions
1. Motions for Interlocutory Injunctive ReliefIn November 2007, Blow filed a motion seeking a court order to enjoin the respondent from engaging in retaliatory behavior against him because of the § 2241 petition and also to prevent prison officials at USP Atwater from interfering with the delivery of Blow's mail (Dkt. No. 8). In March 2008, he filed a motion asking for more time to file a traverse to the respondent's answer and complaining again about interference with delivery of his mail at USP Atwater. The magistrate judge's findings in August 2008 recommend denial of both these motions for interlocutory injunctive relief, because Blow made an inadequate showing of imminent harm. As Blow did not object to the magistrate judge's findings and recommendations, the court will adopt them in full. See 28 U.S.C. § 636(b)(1). Moreover, Blow's allegations about continued interference with mail and possible retaliation by officers at USP Atwater are now moot, as he was transferred to USP Lee in September 2008. The court will deny petitioner's motions.
2. Motions to Seal Petitioner's Traverse
In his traverse, Blow describes in some detail his discussions with prison staff at USP Beaumont and other institutions about problems he had with white supremacist inmates and his attempts to be granted protective custody status. In some cases, he lists inmates' names and describes specific incidents. He has filed three motions asserting that if this information remains public record, it may fall into the hands of other inmates and create a threat to his safety. He asks that at least the traverse, but also possibly the case itself or his name as the petitioner, be placed under seal. In an abundance of caution, the court will place the traverse (Dkt. Nos. 18 and 19) under seal. Finding the more general information in the court's opinion and the redacted information in other documents in the file to present no substantial threat to Blow's safety, however, the court declines to seal the entire case or to conceal Blow's name as the petitioner.
3. Other Motions
Blow moves for a response to his traverse and his other motions (Dkt. No. 23). The Federal Rules of Civil Procedure do not require a litigant to file a response to each and every motion submitted by an opponent. Blow also moves for proceedings (Dkt. No. 24) at which he can "present [his] discovery and cross-examine the respondents." The court construes this submission as a request for an evidentiary hearing where Blow may make the arguments and develop the evidence he describes in his traverse. As the court has determined that Blow fails to allege facts on which he is entitled to relief under § 2241, he is not entitled to further proceedings or further presentation of evidence. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (finding that district court may grant habeas hearing only upon finding that petitioner's factual allegations, if true, would entitle the applicant to federal habeas relief). The court must deny Blow's motions requesting additional responses or proceedings.
Conclusion
For the stated reasons, the court concludes that Blow's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, must be dismissed. His claim concerning the disciplinary infraction must be dismissed without merit, and his claim regarding the alleged failure of BOP officials to ensure his safety must be dismissed without prejudice, as it is not cognizable in a habeas petition under § 2241. An appropriate order will issue this day.The petitioner is advised that he may appeal this decision, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure, if a judge of the United States Court of Appeals for the Fourth Circuit or this court issues a certificate of appealability, pursuant to 28 U.S.C. § 2253(c). A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. § 2253(c)(1). Petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right." Therefore, this court declines to issue any certificate of appealability pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure. See Miller-El v. Cockrell, 537 U.S. 322 (2003); Slack v. McDaniel, 529 U.S. 473 (2000). If petitioner intends to appeal and seek a certificate of appealability from the United States Court of Appeals for the Fourth Circuit, his first step is to file a notice of appeal with this court within 30 days of the date of entry of this memorandum opinion and the accompanying order, or within such extended period as the court may grant pursuant to Rule 4(a)(5).
The Clerk is directed to send copies of this memorandum opinion and accompanying order to petitioner and counsel of record for the respondent.