Opinion
Civil Action No. 05-CV-013-KKC.
March 31, 2005
MEMORANDUM OPINION AND ORDER
Robert G. Walgenbach, an individual presently confined at the Federal Correctional Institution ("FCI") in Manchester, Kentucky, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and has paid the district court filing fee.
This matter is before the Court for screening. 28 U.S.C. § 2243; Demjanjuk v. Pertovsky, 612 F. Supp. 571 (N.D. Ohio 1985) (citing Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970), cert. denied, 400 U.S. 906 (1970); accord Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
CLAIMS
The petitioner challenges a disciplinary conviction whereby he lost 41 days of good time credits on the grounds that the proceedings (1) violated his due process rights in several respects; and (2) was discriminatory.
FACTUAL ALLEGATIONS
The following is a summary or construction of the allegations contained in the instant petition and attachments.
The relevant events begin on February 4, 2004, when a Bureau of Prisons ("BOP") officer retrieved outgoing inmate mail and found a note on which an anonymous inmate had written that drugs could be found taped to a locker in cell #1119, a two-man cell shared by the instant petitioner and another inmate named Fred Charles. The officer ordered the inmates out of the cell and a subsequent search yielded a packet containing a substance which tested positive for cocaine, found taped under Walgenbach's locker. The petitioner states that he and Charles were escorted to the Special Housing Unit, where another officer read them incident reports (Exhibits [hereinafter "Ex."] 1-2), which charged both of them with possession of narcotics.
Charles and Walgenbach were kept segregated in that unit until April 26, 2004, when their separate hearings were had before a Disciplinary Hearing Officer (DHO). The DHO's final reports of June 2, 2004, reveal that both inmates denied the charges, the petitioner claiming that he had been set up, perhaps by inmates in 3- or 10-man cells, so as to obtain his desirable double cell, and Charles, testifying that perhaps someone wanted a new cell and "I've never seen Walgenbach with anything. He's affiliated with the Latin Kings. He moved in the cell in October." See Ex. 3-4. The reports are otherwise virtually identical. In both, the DHO found that the inmates' denials were not credible; the substance was found in the area for which they were responsible; and based upon the laboratory test and the memorandum of the tester, the greater weight of the evidence supported a finding that they did possess narcotics. The DHO imposed identical sanctions: 30 days in disciplinary segregation, loss of visitation privileges for one year, and the loss of 41 days of good conduct time.
Both Charles and Walgenbach appealed their convictions through the BOP administrative remedy procedures on several similar grounds. The petitioner claimed that many people had access to their cell on a daily basis; the incident was not properly investigated and, had it been, another inmate would have been found to have set them up; and he relied on an attached statement of a prisoner named Marsillett, who stated indeed that he thought that the two cellmates had been "setup" because prior to the February incident an inmate named Ed White, to whom Walgenbach owed money, had threatened to obtain cocaine and plant it in the Charles/Walgenbach cell; had made a large and uncustomary commissary purchase just beforehand; and was laughing as the incident was going on. Ex. 6.
Charles' appeal also was based upon the cell's availability, the inadequate investigation, and the theory that they had been set up. Ex. 7. Inmate Charles did not mention White as the possible wrong-doer, however, but relied on his own past conduct: he had requested a urinalysis, which was conducted the day after the drugs were found and was negative for drugs; he had passed every urinalysis at the prison in the past two years; and he had never before had a prison incident report written against him. Id.
The BOP Regional Director's responses to their appeals were very different. The petitioner's appeal was denied, the Director finding sufficient evidence to support the conviction and rejecting Inmate Marsillett's statement as being a common ploy for one inmate to support another's story but actually having "no merit." Ex. 6. Charles' appeal, however, resulted in the matter being remanded to the institution for "reinvestigation." Ex. 7. Upon its remand, the same DHO held another hearing for Charles on August 30, 2004. His subsequent report reveals that he had the same evidence as at the prior hearing, plus "additional information has been brought to my attention and upon further review of this incident report, I have determined this report will be expunged." Ex. 9.
The petitioner added the result in Fred Charles' case as part of his appeal to the BOP's national office, complaining that if one incident with the same area and same evidence was expunged, they both should be expunged, and that he was being discriminated against and used as a scapegoat. Ex. 10-11. His appeal was denied, however. Ex. 12.
Having exhausted the BOP administrative appeal process, the petitioner filed the instant cause of action in this Court three months later.
DISCUSSION
Federal prisoners like Walgenbach can raise a § 2241 claim based on the fact that deprivation of good-conduct credits could cause him to be in illegal confinement in the future. Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); Peyton v. Rowe, 391 U.S. 54, 67 (1968). To prevail, a prisoner challenging the good time calculation must show that the claim raises a constitutional issue, and the resolution of this issue in the prisoner's favor can affect the length of his custodial term. Fields v. Keohane, 954 F.2d at 949 ( citing Coleman v. Thompson, 111 S. Ct. 2546, 2554 (1991)).
The due process required by the U.S. Constitution for prisoners facing disciplinary action has been delineated by the Supreme Court of the United States in a few well known opinions. When a prisoner is faced with the loss of good conduct time or a penalty which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," he is entitled to certain due process protections. Sandin v. Conner, 515 U.S. 472, 484 (1995). The procedures must provide for him (1) a 24-hour written notice of the charge; (2) a qualified right to call witnesses; and (3) a written statement by the fact-finders as to the evidence relied on and reasons for the disposition, all as set out in Wolff v. McDonnell, 418 U.S. 539, 564-65 (1974).
Exhibits herein demonstrate that proceedings against the instant petitioner met all of these constitutional requirements, and the petitioner does not point to any deviation therefrom. He complains that he asked for and did not receive a fingerprint analysis, a handwriting analysis, and other laboratory testing on the packet, but these are not a part of the process which he is due. The petitioner gives many reasons that Marsillett should be believed and reasons that White was probably the wrong-doer, but a review of a decision of a prison disciplinary proceeding does not involve a redetermination of an inmate's innocence or guilt. A court merely ensures that a disciplinary decision is not arbitrary and does have evidentiary support. Superintendent v. Hill, 472 U.S. 445, 457 (1985).
The Supreme Court has also set out what standard of evidentiary support satisfies constitutional due process. Due process requires that a prisoner's good conduct time cannot be forfeited unless there is "some evidence" of his guilt. Id. at 455-56. In Superintendent v. Hill, the Supreme Court wrote as follows:
Assuming that good time credits constitute a protected liberty interest, the revocation of such credits must be supported by some evidence in order to satisfy the minimum requirements of procedural due process. . . . [a]scertaining whether the "some evidence" standard is satisfied does not require examination of the entire record, independent assessment of witnesses' credibility, or weighing of the evidence, but, instead, the relevant question is whether there is any evidence in the record to support the disciplinary board's conclusion.Id. at 454-55. To the extent the petitioner is asserting that one person's testimony is more credible than another's, independent assessment of witnesses' credibility is not required. Id. at 455.
In the case sub judice, despite the petitioner's denials, there is "some evidence" of the petitioner's guilt. There was a packet with an unknown substance; it was found under the petitioner's locker; it tested positive for cocaine; and the person who performed the test reduced the finding to a writing. See Wagner v. Seely, et al., 915 F.2d 1575 (7th Cir. 1990) (unpublished), cert. denied 501 U.S. 1219 (1991). Additionally, the DHO found the petitioner's testimony not to be credible. Under Superintendent v. Hill, the credibility determinations of hearing officers cannot be disturbed on appeal. 915 F.2d at 1576.
The attached DHO Reports chronicle the hearings; note the evidence used, in addition to the substance testing positive for cocaine; and contain the written statement by the fact-finder as to the evidence relied upon and the reasons for the disposition, all as required under Wolff and Superintendent v. Hill. They show that the DHO did not rely on any confidential information in either initial hearing, so there is no due process claim in that regard. The only unexplained material was the DHO's reference to "additional information" used in his second Charles decision, information which led to a different finding and expungement of the matter for Charles. However, Charles' result is not the matter under scrutiny and the "additional information" about Charles is not relevant to this petitioner's result.
The petitioner also fails to state a claim under the U.S. Constitution's equal protection clause, which requires that all persons similarly circumstanced shall be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Canterino v. Wilson, 546 F. Supp. 174, 206 (6th Cir. 1982) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). However, a petitioner/plaintiff "could not make out a violation of his equal protection rights simply by showing that other inmates were treated differently." Newell v. Brown, 981 F.2d 880, 887 (6th Cir. 1992), cert. denied, 114 S. Ct. 127 (1993). The litigant must show that he "was victimized because of some suspect classification, which is an essential element of an equal protection claim." Id. (citing Booher v. United States Postal Service, 843 F.2d 943, 944 (6th Cir. 1988)). As the plaintiff has not made such a showing, no cognizable equal protection claim has been stated. Id.
Petitioner Walgenbach has not asserted that the person claimed to have been afforded favorable treatment, i.e., Fred Charles, was similarly situated to him. See e.g., Reed v. Reed, 404 U.S. 71, 76 (1971) (equal protection requires that "all persons similarly circumstanced shall be treated alike") (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). He has not asserted that they were convicted of the same or similar crime, hold the same or similar security classification, have exhibited the same or similar behavior in the past, or were otherwise so similarly circumstanced that they should have been afforded similar treatment.
The instant petitioner's allegations establish only similarity with Charles — they were cellmates at the time the cocaine was found in their cell. However, it was Walgenbach's locker to which the drug packet was taped. Perhaps more to the point, Walgenbach did not insist on a urinalysis afterwards to clear himself of suspicion of drug use, as Charles did. Also, Charles relied on his clean record at the prison with respect to drugs and generally. Walgenbach does not even claim to be similarly situated in terms of a clear institutional record. The law is that an equal protection claim which is not supported by factual allegations is dismissable as being only conclusory. See Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971).
Consequently, the petitioner's equal protection discrimination claim is without a legal basis and it, too, must be dismissed.
Walgenbach has filed with his petition a request for the Court to appoint counsel, based upon his indigency and incarceration. A district court has discretion to appoint counsel for an indigent civil litigant. 28 U.S.C. § 1915(e). In determining whether to exercise this discretion, the Court must consider certain factors, none of which support this petitioner's request. See Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993). "The appointment of counsel to civil litigants is a decision left to the sound discretion of the district court, and this decision will be overturned only when the denial of counsel results in `fundamental unfairness impinging on due process rights.'" Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992) (citations omitted).
Having considered this matter, the Court finds that exceptional circumstances warranting appointment of counsel do not exist herein. The petitioner has failed to state a cognizable claim worthy of a response. It would be inconsistent to suggest that the instant petitioner should have counsel when the Court has found that no claim has been stated and that dismissal is appropriate, based on the facts presented and not complex legal issues. Therefore, the motion for appointment of counsel will be denied.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED as follows:
(1) The petitioner's motion for appointment of counsel [Record No. 2] is DENIED.
(2) The petition of Robert G. Walgenbach for writ of habeas corpus is DENIED, sua sponte; the action will be DISMISSED from the docket of the Court, and Judgment shall be entered contemporaneously with this Memorandum Opinion and Order in favor of the respondent.