Opinion
Civil Action No. 01-40151-WGY
March 12, 2002
MEMORANDUM AND ORDER
I. INTRODUCTION
Willie James Griffin ("Griffin") filed this petition for writ of habeas corpus contesting his conviction after a prison disciplinary hearing of violating regulations that prohibit receiving money from another prisoner. Griffin complains that the prison violated its own disciplinary hearing regulations, that it failed to produce sufficient evidence to support the conviction, and that it wrongfully withheld monies mailed to Griffin by family members.
II. Facts
Griffin is a prisoner at the Federal Medical Center in Devens, Massachusetts. Habeas Pet. at 1. On January 24, 2001, Griffin called his mother. Incident Rep. ¶ 13; Gov't's Resp. at 3. During this conversation, Griffin allegedly told his mother that she would be receiving money, hinted that the source of the money was another prisoner, and directed her to send him $20.00 and keep the remainder, approximately $15.00, for herself. Incident Rep. ¶ 11; Gov't's Resp. at 4. This conversation was recorded by the prison telephone monitoring system. DHO Rep. at 3. On January 29, 2001, Griffin received a money order for $20.00 from his family. Habeas Pet. at 4; Incident Rep. at 3; Gov't's Resp. at 4.
The Court relies on the following documents from the record in this case, which will be identified in the text using the abbreviations in parentheses below: Griffin's Application for Habeas Corpus Form ("Habeas Pet.") [Docket No. 1]; Government's Response to Petition ("Gov't's Resp.") [Docket No. 5]; Declaration of William Baumgartel ("Baumgartel Decl.") [Docket No. 6]; Discipline Hearing Officer Report of March 20, 2001 ("DHO Rep.") [Docket No. 6, Ex. 1, at 1-4]; Incident Report and Investigation by J. Dominguez-Mays dated February 7, 2001 ("Incident Rep.") [Docket No. 6, Ex. 1, at 13-15]; Griffin's Reply to Government's Response ("Pet'r's Reply") [Docket No. 9]; Bureau of Prisons Response to Griffin's Regional Appeal ("Regional Appeal Resp.") [Docket No. 6, Ex. 2, at 1-2]; Bureau of Prisons Response to Griffin's National Appeal ("Nat'l Appeal Resp.") [Docket No. 6, Ex. 2, at 5-6]; Inmate Telephone Call Monitoring Report ("Phone Monitoring Rep.") [Docket No. 6, Ex. 1, at 19]; Statement of Inmate Griffin's Account, dated June 22, 2001 ("Statement of Account") [Docket No. 9, Ex. 4]. The Court accords deference to the findings of the DHO Report. See, e.g., Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996).
The chronology of the subsequent investigation is somewhat fuzzy. It is clear, however, that a recording and report of Griffin's conversation was made on January 24, 2001. DHO Rep. at 2 ("This finding is based upon review of the Inmate Telephone Monitoring Report dated January 24, 2001."). There was an investigation, apparently triggered by receipt of the telephone monitoring report, which culminated in an Incident Report and Investigation, completed and delivered to Griffin on February 7, 2001. Incident Rep. at 3. While the investigation was pending, $225.00 mailed to Griffin was withheld by prison officials, though the money was returned after the investigation was completed. Pet'r's Reply ¶ 5. Following the investigation, Griffin was charged with a "code 297" violation, "Use of the Telephone for Abuses Other than Criminal Activity," and a "code 328A" violation, "Accepting Anything of Value from Another Inmate." Incident Rep. ¶ 9. These charges resulted in a Unit Discipline Committee Hearing ("UDC Hearing") on February 13, 2001, six calendar and four working days after receipt of the Incident Report. Habeas Pet. ¶ 13(e); Gov't's Resp. at 4-5. The UDC referred the matter to the Disciplinary Hearing Officer. Gov't's Resp. at 5; Incident Rep. at 1.
The incident report was prepared by SIS Technician J. Dominguez-Mays. It is unclear whether Dominguez-Mays is a prison guard and whether Dominguez-Mays directly heard the conversation or heard it only via the tape recording.
III. Procedural History
On March 1, 2001, the Disciplinary Hearing Officer conducted a DHO Hearing, and subsequently determined that there was insufficient evidence to proceed on the code 297 violation, but that there was sufficient evidence to proceed on the code 328A violation (Accepting Anything of Value from Another Inmate). DHO Rep. at 2. Griffin was found guilty, and lost his social telephone privileges and commissary privileges for six months. Id. at 3. As a result of this conviction, Griffin may not qualify for good time credits or for transfer to a detention facility located closer to his home.
Griffin appealed to both the regional and national levels of the Bureau of Prisons, alleging that the initial hearing was not conducted within seventy-two hours of receipt of the incident report, and that "the DHO fabricated parts of [Griffin's] telephone conversation to find [Griffin] committed a prohibited act. [Griffin] also contend[s] that postal money orders received from [his] family were illegally withheld as a result of the incident report." Regional Appeal Resp. at 1. The reviewing authorities rejected each of Griffin's arguments. Id. at 2; Nat'l Appeal Resp. at 1-2.
Griffin subsequently filed this petition for habeas corpus, complaining of the same issues complained of in his appeals, among others. As Griffin has apparently exhausted his claims, the Court addresses the substance of Griffin's claim. Gov't's Reply at 7 n. 3.
IV. DISCUSSION
Griffin presses three arguments: (1) delay by prison officials in prosecuting the complaint against him should have resulted in a procedural default; (2) the verdict at his hearing was not supported by the evidence; and (3) temporarily withholding the additional $225.00 was improper.
A. Procedural Default
The Federal Bureau of Prisons has established numerous regulations regarding prisoner discipline. Most pertinent here is the general disciplinary framework for federal prisons. 28 C.F.R. § 541.15. The system is supposed to work like this: within 24 hours of the prison staff becoming aware of an incident, the staff is to give notice to the prisoner by delivering an incident report; within three days of the time the prison staff becomes aware of the incident, an initial hearing — called a Unit Disciplinary Committee Hearing, or "UDC Hearing" — must be convened; if the charge is found to be serious, the Unit Disciplinary Committee (after conducting the UDC Hearing) may refer the matter to a Disciplinary Hearing Officer Hearing, also known as a "DHO Hearing"; if a DHO Hearing is to be convened, notice must be given to the prisoner at least twenty-four hours prior to the hearing. Id. § 541(a)-(c).
The conversation giving rise to the allegations here took place on January 24, 2001. On February 7, 2001, prison staff received the completed Incident Report and Investigation. February 7, 2001 was a Wednesday; thus three working days later — Monday, February 12, 2001 — was the deadline for holding the UDC Hearing pursuant to 28 C.F.R. § 541.15(b). The UDC Hearing, however, was not held until Tuesday, February 13, 2001. Thus, the prison staff missed the three-day deadline. As will be shown, however, this delay is not fatal to Griffin's conviction.
Any discussion of due process for prisoners at prison disciplinary hearings begins with Wolff v. McDonnell, 418 U.S. 539 (1974). There, the Supreme Court observed that "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. at 556. Wolff addressed inmates' rights to call witnesses and present evidence in their defense before the disciplinary board. Id. at 566. These rights, the Supreme Court has held, are necessarily circumscribed by the realities of prison in some cases, e.g., Baxter v. Palmigiano, 425 U.S. 308 (1976), and by the very real dangers in prison life which may result from violence or intimidation directed at other inmates or staff. Inmate rights are therefore subject to the "mutual accommodation between institutional needs and objectives [of prisons] and the provisions of the Constitution. . . ." Id. at 321 (quoting Wolff, 418 U.S. at 556).
The Supreme Court in Wolff that there are three bedrock elements of due process that apply in the prison context: (1) advanced written notice of the disciplinary charges; (2) the opportunity to call witnesses and present evidence; and (3) a written statement from the finder of fact as to the evidence relied upon and reasons for disciplinary action. 418 U.S. at 563-67. In this case, it is undisputed that Griffin received advance written notice of the hearing; it is undisputed that Griffin had the opportunity to call witnesses, though he chose not to, and it is undisputed that the factfinder supplied to Griffin a written statement of the reasons for the disciplinary action taken. Thus, from a constitutional standpoint, Griffin received all the process due him.
Nevertheless, Griffin argues that the Bureau of Prisons regulations ought count for something. In essence, Griffin argues that the Bureau of Prisons regulations are binding, and that failure to comply with the regulations constitutes a violation of his rights. Accordingly, Griffin asserts that failure to comply with the Bureau of Prisons regulations ought be construed as a procedural default that prevents further action relating to the infraction.
As a preliminary matter, the Court notes that the language of the regulation is not mandatory. Instead, the regulation states that "[e]ach inmate so charged is entitled to an initial hearing before the UDC, ordinarily held within three work days from the time staff became aware of the inmate's involvement in the incident." 28 C.F.R. § 541.15(b) (emphasis added). The regulation itself, therefore, does not demand absolute adherence to the three-day deadlines. Thus, the Court is uncertain that the regulation has even been breached. Even assuming the regulation was violated, however, the violation was not of a kind that deprived Griffin of due process.
Griffin must demonstrate that his continuing incarceration is a violation of the Constitution or laws of the United States. 28 U.S.C. § 2241. "In a collateral attack the question is not whether some employee of the United States goofed up but whether the error yields unconstitutional or otherwise illegal custody." White v. Henman, 977 F.2d 292, 295 (7th Cir. 1992) (citing Kramer v. Jenkins, 806 F.2d 140, 142 (7th Cir. 1986) ("[A prisoner] must show that his continued custody is a violation of the Constitution, and the violation of an administrative rule is not the same thing as the violation of the Constitution.")).
In White, the prisoner was taken before a DHO Hearing more than three days after the incident report had been delivered, violating the same regulation at issue here. 977 F.2d at 293. The hearing officer dismissed the complaint — relating to an attempted escape — as barred by the three-day deadline. Id. The Regional Director of the Bureau of Prisons reversed the hearing officer and reinstated the charges. Id. White subsequently was found to have violated prison regulations. Id. The Seventh Circuit found that the three-day rule had been violated, but concluded that failing to meet the prison regulation time limits did not create a per se bar against pursuing the charges. "To show that `the custody' — and not simply the custodian — violates the law, the prisoner must at a minimum trace the prejudicial effect of the error." Id. at 295; see also Doyle v. Holt, No. 94-C-3925, 1994 WL 469233 (N.D.Ill. Aug. 26, 1994) (concluding that prisoner could demonstrate no prejudice arising from the wrong prison disciplinary body hearing his case, and therefore the prisoner was not entitled to habeas relief despite violation of prison disciplinary regulation).
Griffin cannot demonstrate prejudice. Griffin suffered no injury as a result of the one-day delay. Griffin retained the right to call witnesses. The delay was not so great that memories had dimmed or witnesses had died or had become otherwise unavailable. Griffin still received all the due process required by Wolff. Griffin asserts no prejudice in his complaint, nor can he: Griffin suffered no prejudice. Accordingly, the Court rejects Griffin's first argument.
B. Insufficient Evidence
Griffin next argues that the evidence against him is insufficient. Griffin argues that he did not receive anything of value from another prisoner, that the evidence demonstrates only that he received money, not that the source of the funds was another prisoner.
The contours of habeas review of prison disciplinary hearings are relatively clear. In Superintendent v. Hill, 472 U.S. 445 (1985), the Supreme Court considered this issue, and concluded that a court cannot substitute its view of the facts for that of a prison disciplinary hearing. "If there is some evidence to support the disciplinary committee's decision . . . then the requirements of procedural due process have been met." Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996) (citing Hill, 472 U.S. at 454). "So long as some evidence in the record supports the factfinder's decision, the factfinder's resolution of factual disputes, including credibility disputes between witnesses, is binding and final." Lawson v. Scibana, No. 99-cv-70165, 2000 WL 356379, at *5 (E.D.Mich. Mar. 22, 2000) (citing Hill, 472 U.S. at 455-56); Mullins v. Smith, 14 F. Supp.2d 1009, 1012 (E.D.Mich. 1998) ("[F]ederal courts do not have jurisdiction to relitigate de novo the determinations made in prison disciplinary hearings."); cf. Brennan v. Cunningham, 813 F.2d 1, 4, 10 (1st Cir. 1987) (affirming district court's application of "some evidence" standard, without explicitly addressing the issue); Figueroa v. Vose 57 F.3d 1061, 1995 WL 352819, at *3 (1st Cir. June 13, 1995) (unpublished table decision) (applying "some evidence" standard).
For the propriety of citing an unpublished decision, see Anastasoff v. United States, 223 F.3d 898, 899-905 (8th Cir.) (R. Arnold, J.) (holding that unpublished opinions have precedential effect), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc), Giese v. Pierce Chem. Co., 43 F. Supp.2d 98, 103 (D.Mass. 1999) (relying on unpublished opinions' persuasive authority), and Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. Process 219 (1999). But see Hart v. Massanari, 266 F.3d 1155, 1158-59 n. 1, 1177-80 (9th Cir. 2001) (holding constitutional the Ninth Circuit's no-citation rule, Local Rule 36-3, which establishes that unpublished dispositions and orders are not binding precedent, except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel).
In this instance, the record is replete with evidence to support the decision — indeed, there is a tape recording of the call itself. Accordingly, the Court finds "some evidence" to support the decision, and thus rejects Griffin's second claim.
C. Standard of Proof
Inherent in Griffin's complaint is an argument that the hearing officer failed to apply an appropriate standard of proof in considering the evidence. To some extent, therefore, Griffin alleges a defect in the disciplinary proceedings separate from those contemplated by Hill.
In Brown v. Fauver, 819 F.2d 395 (3d Cir. 1987), the Third Circuit noted this distinction: Hill addresses the standard of review courts ought apply, leaving unaddressed the standard of proof that prison disciplinary boards ought apply. Id. at 399 n. 4. In Brown, a New Jersey prison regulation permitted a finding of guilt at a prison disciplinary hearing based upon substantial evidence. Id. at 396. The Third Circuit was uncertain whether the regulation established a standard of proof lower than preponderance of the evidence or merely established a standard of review. Id. at 398-99. Although the Third Circuit denied the prisoner's petition on exhaustion grounds, it noted:
[If the statute] provides for a burden of proof lower than a preponderance of the evidence, then it follows that an inmate can be punished for acts which he in all probability did not commit. We have grave doubts about the constitutionality of such a regulation. Also if Brown's interpretation of the regulation is correct, then the district court was incorrect in relying on Superintendent v. Hill, supra. In Hill, the Court did not address whether the Constitution requires a particular burden of proof in prison disciplinary proceedings. Hill only spoke to issues involving standards of appellate review.
Id. at 399 n. 4
The standard of proof established by federal prison regulations, however, is equivalent to a "preponderance of the evidence" standard. Prison hearing officers are directed to make their findings "based on at least some facts, and if there is conflicting evidence, it must be based on the greater weight of the evidence." 28 C.F.R. § 541.15(f) (UDC Hearings); see 28 C.F.R. § 541.17(f) (using identical phraseology regarding DHO Hearings). Accordingly, the prison hearing officer was obligated to make the decision based on the greater weight of the evidence. Greater weight is synonymous with preponderance of the evidence, and is therefore an appropriate standard of proof.
Here, it appears that the evidence stacked up like this: on the one side was the report, the tape of the conversation, and the money; on the other side was Griffin's assertion that an unnamed friend currently in the military stationed at Fort Leavenworth mailed him the money. The record indicates that the DHO Hearing Officer applied the correct standard of proof. "[T]he DHO determined inmate Griffin committed the code 328A, based upon the greater weight of the evidence against him." DHO Report at 3. The DHO Hearing Officer therefore came to a reasonable conclusion based on the evidence using a legally appropriate standard of proof.
D. Withholding $225.00
Finally, Griffin argues that the delay in posting to his account the $225.00 that was sent to him was improper. Three Money Orders for Griffin were received by the prison on February 23, 2001, totaling $225.00. Pet'r's Reply ¶ 5 Ex. 4 (Statement of Account). These funds were received at the prison after the UDC had referred the matter for a DHO Hearing, but before the hearing was conducted on March 1, 2001. The funds were subsequently deposited in Griffin's account approximately one month after receipt. See Habeas Pet. at 4. Although a habeas petition is not the appropriate vehicle in which to bring this complaint, see, e.g., Heck v. Humphrey, 512 U.S. 477, 481 (1994), the Court will consider this claim, as neither party has objected to consideration of the issue.
Prisons have wide latitude to control prisoners' mail and access to money. In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court concluded that prisons have the right to open and inspect prisoners' legal correspondence. Id. at 574-77. Another court has observed that "[c]ontrol of the mail to and from inmates is an essential adjunct of prison administration and the maintenance of order within the prison." McCloskey v. Maryland, 337 F.2d 72, 74 (4th Cir. 1964). Similarly, "[a]lthough the inmates' private interest in their personal funds is apparent, inmates are not entitled to complete control over their money while in prison." Mahers v. Halford, 76 F.3d 951, 955 (8th Cir. 1996). Furthermore, prison regulations permit the withholding of funds suspected to be contraband — i.e., money received from another prisoner. See 28 C.F.R. § 553.13(d).
Given this backdrop, it was eminently reasonable for the prison, during an ongoing investigation and hearing process concerning the receipt of contraband funds, to withhold new monies that arrived for Griffin. Had the prison not subsequently deposited the funds to Griffin's account, there might have been a problem, but the prison did deposit the money as soon as the investigation and hearing were completed. Griffin's final claim is without merit.
III. Conclusion
While individuals do not lose protection under the Constitution upon being incarcerated, their rights while in prison must be balanced against the institutional needs of maintaining order and security within prison. One result of this balancing act is that prisoners may be disciplined for conduct upon an evidentiary showing that would be insufficient to convict an individual in a court of law. Accordingly, in exercising its reviewing function, this Court is limited to verifying that some proof existed to support the finding of guilt. In this case, there was ample evidence to support such a finding.
Similarly, prisoners may not invoke the prison's failure to comply with its regulations as a bar to prosecution unless they can show that the failure to follow regulations actually prejudiced them. Griffin cannot show this.
Accordingly, Griffin's Petition for Habeas Corpus is DENIED.