United States District Court, E.D. Kentucky, Northern Division, at Ashland
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
Leonard Joseph Cass is an inmate confined in the Federal Correctional Institution at Ashland, Kentucky. Proceeding pro se, Cass has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking the expungement of a disciplinary conviction and the addition of 27 days of good conduct time credit to his prison sentence. [R. 1] Cass has paid the requisite $5.00 filing fee. [R. 3]
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Cass's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the petitioner's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Because Cass's conviction is supported by some evidence, the Court concludes that he is not entitled to the relief he seeks and will dismiss his § 2241 petition. The rationale for this decision is set out below.
A. Disciplinary Charge, Conviction, and Administrative Appeals
On August 9, 2013, while Correctional Officer J. Travis Bishop was conducting the morning accountability census at FCI-Ashland, he had an encounter with Cass, resulting in Cass being charged with Assaulting Any Person (minor assault), a Code 224 violation, and with Insolence Towards A Staff Member, a Code 312 violation. The incident report charging that violation states, as follows:
Date: On 8-09-2013 at 8:30 A.M., While conducting the 8:00 AM Accountability Census, Inmate Cass, L. #XXXXX-XXX mentioned a minor leak from the overhead ductwork in A-Wing. Inmate Cass and I were looking up at the ductwork, standing side by side. Inmate Cass said, "We need to get that fixed, don't we", then tapped my left forearm with the back of his right hand. I patted inmate Cass down for weapons, and escorted inmate Cass to my office. As Psychology Technician Marco Refitt [sic] entered the unit, Inmate Cass asked if staff member Reffit could be present. Staff member Reffit and I agreed. I began to ask imnate why he tapped me with his right hand. Inmate Cass raised his voice in response to the question. I asked Inmate Cass to lower his voice. Inmate Cass raised and waved his hands in fast motions as he again raised his voice to an even louder level. I told inmate Cass to put his hands down and lower his voice again. Inmate Cass again raised his voice and refused to lower his hands to his side. Inmate Cass was escorted to Special Housing Unit.
Cass received a copy of the Incident Report on August 9, 2013, and this matter was referred to a Disciplinary Hearing Officer ("DHO") for hearing, which was conducted on August 13, 2013. Cass appeared at the DHO hearing, stated that he understood his rights and waived his right to a staff representative and to call any witnesses at the hearing. Cass had no documentary evidence to present at the hearing. The DHO read the charges to Cass, questioned him about it, and he denied the charges. The DHO summarized what transpired and the colloquy that occurred between them at the hearing, as follows:
The DHO first confirmed that he had received a copy of the incident report, understood his rights, did not want to call any witnesses, was not requesting the assistance of a staff representative, and had no documentary evidence to present. The DHO then read aloud Section 11 of the Incident Report and summarized the attached supporting documentation and asked inmate Cass if it were true. He said that he did brush his forearm against Officer Bishop's, but said it was unintentional. He said they were discussing a leak in the ceiling and while doing so, he leaned forward and lifted his right forearm which came into contact with Bishop's left forearm. He said at that time Bishop leaped back and started yelling at him and "threatened to throw me on the floor". He said this is the second incident like this that he has had with Officer Bishop. He said that he did become upset and that his adrenaline was flowing. He said that he felt Mr. Bishop was out of control and was constantly telling him to "shut up". He said Officer Bishop is mistaken in his report of him tapping Bishop with his hand and said that he thought it would be impossible for Bishop to know this as they were both looking up at the ceiling at that time.
[R. 1-2, p. 1]
After considering the eyewitness account of Officer J. Bishop, the memorandum from M. Reffit, Psychology Technician, and Cass's statements and responses to the DHO's questions at the hearing, the DHO found that Cass had committed the prohibited act of assault, a Code 224 violation, and the DHO dismissed the insolence charge, the Code 312 violation, for the reasons stated, in part, below:
In deciding this issue, I considered your version of the incident, but was not swayed or convinced of your innocence. You provided no credible evidence to support your claim that you simply brushed your forearm against the staff member's while showing them a leak in the ceiling other than to simply say it is and suggest that Officer Bishop is mistaken in his report of you tapping him on the arm with the back of your hand and claim that it would be impossible for him to know this while looking at the ceiling. As we discussed at the hearing, unlike you, I do not believe it would be impossible for a staff member to have a level of awareness in a correctional setting to detect when an inmate had tapped them with the back of their hand, even while looking at a ceiling. I believe a person could easily use their peripheral vision and sense of touch to determine such a fact. Clearly there is a distinct difference with the sensation of being brushed against and tapped. You have not proved, not do I find, any credible evidence that impugns the accuracy of Officer Bishop's report of the incident and oyur [sic] behavior and I have given it the greater weight over oyur [sic] unsupported denial. It's clear to me that while Officer Bishop performed his duties and conducted the AM census, you made unconsented physical contact with him by tapping him on the arm with the back of your hand while ...