Opinion
Civil No. 00-CV-73187-DT.
January 14, 2002
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
George Herman Ruth ("petitioner"), presently confined at the Federal Correctional Institution in Milan, Michigan ("FCI-Milan"), seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his application, filed pro se, petitioner seeks unspecified relief. For a number of reasons, petitioner's application does not entitle him to relief and shall be dismissed with prejudice.
II. BACKGROUND
Petitioner is a federal prisoner at FCI-Milan. Petitioner is serving a 120 month term for possession of phenyl acetic acid with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1). Petitioner is scheduled for good conduct time release on December 23, 2002.
On August 23, 1999, Officer T. Van Heerde ("Van Heerde") at FCI-Milan filed an incident report charging Petitioner with giving money or anything of value to another prisoner without staff authorization, a moderate severity rule violation. The report stated that, while Van Heerde was conducting random monitoring of prisoner phone calls, he heard another prisoner state that he was using a friend's phone account to pay for his call. The call was charged to the phone access code ("PAC") assigned to petitioner. Van Heerde reported the incident to Officer Cardona, the staff member assigned to the unit where the call originated. Officer Cardona confirmed that the phone in question was being used by a prisoner named White. The matter was then referred to Lieutenant D. Tanel ("Tanel") for investigation. Lieutenant Tanel presented an incident report to petitioner and advised him of his right to remain silent during the disciplinary process. Petitioner and White denied the charge. Nonetheless, the incident report was sent to the Unit Discipline Committee ("UDC") for a determination. The UDC conducted a hearing where Petitioner again denied the charge. After review of the statements and evidence, the UDC found petitioner guilty. Petitioner was sanctioned with a 30 day restriction on telephone and commissary privileges. Petitioner appealed the UDC hearing results to the warden, the Mid-Atlantic Regional office, and the Central Office for Inmate Appeals. The UDC's decision was affirmed on each occasion. Petitioner next filed the present habeas petition.
Inmates are prohibited from sharing PACs. The applicable regulation states:
Telephone access codes. An inmate may not possess another inmate's telephone access code number. An inmate may not give his or her telephone access code number to another inmate, and is to report a compromised telephone access code number immediately to unit staff.28 C.F.R. § 540.101(c).
III. DISCUSSION
Petitioner contends that the Bureau of Prisons ("BOP") violated his right to due process of law because a different version of the facts was presented at each stage of the proceedings. Petitioner alleges that he was first charged with giving his PAC number to another inmate; next accused of calling and talking to a party for some time before handing the phone to White who then talked to someone at the same number; then accused of making two calls to the same number. Petitioner argues that these different factual accusations denied him the opportunity to prepare an adequate defense.
This Court notes that, according to petitioner, each of the alleged factual scenarios involve him "giving" a phone call (clearly something of value) to a particular inmate named White at a particular time and place, regardless of the exact manner in which this was accomplished. Petitioner received notice of these essential factual allegations. This Court does not understand why petitioner would need to know the precise way he was accused of "giving" the phone call to White in order to prepare a meaningful defense.
In any event, petitioner is not entitled to habeas relief for a number of reasons.
First, this claim is not properly brought under 28 U.S.C. § 2241. The federal habeas statute gives United States District Courts jurisdiction to consider petitions for writs of habeas corpus only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Thus, a habeas petition is the proper vehicle to seek release from custody, or to challenge the fact or duration of confinement, not to challenge conditions of confinement. A writ of habeas corpus is the appropriate federal remedy for a prisoner challenging the fact or duration of his confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996); Spina v. Aaron, 821 F.2d 1126, 1127-28 (5th Cir. 1987). Turner v. Johnson, 46 F. Supp. 655, 675 (S.D. Tex. 1999). Petitioner is not challenging the fact or duration of his confinement. Therefore, his habeas petition does not entitle him to relief.
Second, the sanctions petitioner received do not implicate due process concerns, because 1) they did not affect the length of his confinement and 2) are not atypical, significant deprivations in relation to the ordinary incidents of prison life which might otherwise implicate the Due Process Clause. Sandin v. Conner, 515 U.S. 472, 483 (1995) (holding that thirty days confinement in disciplinary segregation was not a sufficiently grievous loss of liberty in relation to ordinary prison life to implicate the Due Process Clause). Regulations or statutes may create a liberty interest protected by the Due Process Clause, but they are "generally limited to state created regulations or statutes which affect the quantity of time rather than the quality of time served by the prisoner." Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). See also, Jones v. Baker, 155 F.3d 810, 812-13 (6th Cir. 1998) (holding that confinement in administrative segregation for two and a half years of a murder suspect during the investigation of an in-prison killing did not deprive the prisoner of a liberty interest without due process). But See, Lee v. Coughlin, 26 F. Supp.2d 615, 629-37 (S.D.N.Y. 1998) (holding that inmate's confinement in disciplinary segregation for 376 days was atypical and significant hardship for purposes of establishing liberty interest). Petitioner complains of having been sanctioned with 30 days deprivation of telephone and commissary privileges. The duration of petitioner's confinement was not affected. Petitioner was not subjected to a grievous loss of liberty which might arguably constitute an atypical and significant hardship for purposes of establishing a protected liberty interest. This is an additional, alternative reason why petitioner is not entitled to habeas relief.
Further, review of the record shows that the BOP complied with its regulations governing disciplinary proceedings resulting in a temporary loss of privileges. The BOP disciplinary process is fully outlined in the Code of Federal Regulations, Title 28, Sections 541.10 through 541.23. These regulations dictate that manner in which disciplinary action may be taken should a prisoner violate, or attempt to violate, institutional rules. The first step requires filing an incident report and investigation pursuant to 28 C.F.R. § 541.14. The matter is then referred to the UDC for a hearing pursuant to 28 C.F.R. § 541.15. If the UDC finds that a prisoner has committed a prohibited act, it may impose minor sanctions. If the alleged violation is serious and warrants consideration for more than minor sanctions, or involves a prohibited act listed in the greatest severity category, the UDC must refer the matter to a Disciplinary Hearing Officer ("DHO") for a finding. 28 C.F.R. § 541.15. In the present case, petitioner was charged with violating a "moderate severity" prohibition. See 28 C.F.R. § 541.13, Table 3. The UDC conducted its hearing within the prescribed time of three work days. Petitioner received prior notice of the charge and was present at the hearing. Petitioner made a statement setting forth his version of the incident. The UDC found, by the preponderance of the evidence, that petitioner committed the prohibited act and imposed a minor sanction, the temporary (30 day) loss of phone and commissary privileges. Petitioner appealed the UDC's findings and sanction without success.
"`Some evidence' is all that is needed to constitutionally support the action of a prison disciplinary board. Williams v. Bass, 63 F.3d 483, 486 (6th Cir. 1995) (citing Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 455 (1985). See also, Higgs v. Bland, 888 F.2d 443, 448-49 (6th Cir. 1989) (same); Hudson v. Edmondson, 848 F.2d 682, 688 (6th Cir. 1988) (same); Turner v. Scroggy, 831 F.2d 135, 140 (6th Cir. 1987) (same). The evidence presented at petitioner's UDC hearing constituted some evidence sufficient to satisfy the due process requirements set out in Superintendent v. Hill and its progeny. See also, Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (ruling that, where a protected liberty interest is at stake, prisoners retain the protection of the Due Process Clause entitling them to notice of charges, a qualified right to present witnesses and other evidence, and a meaningful opportunity to be heard before an unbiased factfinder; noting also, however, that [p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such a proceeding does not apply.").
Review of the record shows that petitioner was not deprived of due process of law at his prison disciplinary proceedings. This is an additional, alternative reason why petitioner is not entitled to habeas relief. Consequently, even if this Court were to consider the merits of petitioner's claim, he would not be entitled to habeas relief. Therefore, the petition shall be denied.
IV. CONCLUSION
In summary, federal habeas corpus relief is not warranted under any theory advanced by petitioner. Accordingly, for the reasons stated above, the Court DENIES WITH PREJUDICE the petition for writ of habeas corpus.