United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
inmate Branden LaBarge has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, seeking to
challenge the imposition of disciplinary sanctions. [Record
No. 1] However, contrary to LaBarge's contentions, the
Bureau of Prisons acted in conformity with the requirements
of due process. As a result, his petition will be denied.
Getz was escorting LaBarge to his newly-assigned cell in the
segregation unit on the afternoon of March 21, 2015. Upon
arriving at the “C-Upper range” in segregation,
LaBarge stopped and refused to walk to his assigned cell.
According to Getz, when he gave LaBarge a direct order to
enter the cell, LaBarge turned his head towards Getz and
stated he was “gonna f**k [you] up if [you] try to put
him in the cell!” When Getz ordered LaBarge to not
resist the escort, LaBarge turned “in an aggressive
manner” and attempted to break free. LaBarge was
subdued and then taken to the medical department for an
issued an Incident Report charging LaBarge with Threatening
Another with Bodily Harm, a Code 203 offense, and Refusing to
Work or Accept a Program Assignment, a Code 306 offense.
[Record No. 10-5 at 1] After a brief hearing, the Unit
Disciplinary Committee referred the charges to a Disciplinary
Hearing Officer (“DHO”) for decision.
Id. at 2-3.
was advised on March 23, 2015, that the charges had been
referred to the DHO. LaBarge refused to sign the form
acknowledging receipt of the notice advising him of the
charges and advising him of his rights at the hearing. That
form indicates that LaBarge did not request a staff
representative for the DHO hearing, nor did he request any
witnesses. [Record No. 10-5 at 4-6]
held a hearing regarding LaBarge's charges on April 2,
2015. The DHO Report indicates that, at the outset of the
hearing, LaBarge was advised of his rights and waived his
right to a staff representative and to present witness
testimony. Id. at 7. Responding to the charges,
They were trying to put me in a cell with a white guy...
he's effectively black. You can't do that. They guy
said I can't do that, I'm a blood. They got
perturbed. They brought us back up the stairs. I said Getz I
can't go in there. They tried to put me back in there. I
refused the cell. He nudged my shoulder. I stepped with him.
He took me down. They were trying to put me in cell 249.
denied threatening officer Getz in any way in response to
further questioning by the DHO. [Record No. 10-5 at 7]
concluded that the reporting officer's description of the
events was more credible than the characterization offered by
LaBarge. He therefore found LaBarge guilty of both offenses,
although he modified the Code 306 offense for Refusing to
Work or Accept a Program Assignment to a Code 307 offense for
Refusing to Obey an Order to more closely reflect the conduct
at issue. Id. at 8-9. The DHO imposed various
sanctions including disallowance of 27 days of good conduct
time for the Code 203 offense and disallowance of 13 days of
good conduct time for the Code 307 offense. The DHO noted
that LaBarge had an extensive history of disciplinary
infractions, including for refusing to obey an order,
fighting, possession of alcohol or drugs, and possession of a
weapon. [Record No. 10-5 at 10]
now contends that his due process rights were violated
because the DHO did not honor his request that testimony be
received from “Burke, ” the inmate in the cell to
which he was to be placed, and that video footage of the
incident be reviewed. [Record No. 1 at 6-7] He alleges that
officer Getz lied about him resisting the escort; Getz
severely injured him when he was thrown to the ground; and he
immediately told “at least a dozen” officers
nearby that he wanted videotape evidence preserved. In
summary, LaBarge alleges that both officer Getz and the DHO
lied in their respective reports about whether he wished to
present this evidence. [Record No. 1-1 at 2, 5] LaBarge
further claims that he told the investigating officer,
Counselor B. Roberts, that he wanted inmate Burke - whom he
indicates witnessed the incident - to testify and that he
wanted video footage of the incident reviewed by the DHO.
[Record No. 1-1 at 3, 5] But the forms completed by Roberts
show just the opposite: LaBarge requested neither
representation nor witnesses. [Record No. 10-5 at 4-6]
LaBarge also suggests that he was justified in refusing to
enter the cell because doing so would have been dangerous to
him in light of his intended cellmate's race and gang
affiliations. [Record No. 1-1 at 7-8]
prison disciplinary board takes action that results in the
loss of good time credits in which a prisoner has a vested
liberty interest, the Due Process Clause requires prison
officials to observe certain protections for the prisoner.
Specifically, the prisoner is entitled to advance notice of
the charges, the opportunity to present evidence in his or
her defense, whether through live testimony or documents, and
a written decision explaining the grounds used to determine
guilt or innocence of the offense. Wolff v.
McDonnell, 418 U.S. 539, 563-66 (1974). Further, the
board's findings used as a basis to revoke good time
credits must be supported by some evidence in the record.
Superintendent v. Hill, 472 U.S. 445, 454 (1985);
Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013).
contends only that he was denied the opportunity the present
evidence in his defense through the testimony of Burke and
the videotape of the incident, assuming one exists. [Record
No. 1-1 at 4-5] The question is not, as LaBarge posits,
whether the evidence he requested was material or whether the
DHO nonetheless had grounds to refuse to consider it. In this
case, both the UDC Counselor and the DHO clearly stated in
the documentary record that LaBarge never requested this
evidence at all [Record No. 10-5 at 4-6, 7], something
LaBarge contends is false.
an inmate's right to present evidence in his or her
defense at a prison disciplinary hearing is not absolute, it
must generally be permitted unless the evidence is irrelevant
or cumulative or its presentation would interfere with or
undermine the safe and orderly operation of the prison.
Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 813
(10th Cir. 2007) (citing Wolff, 418 U.S. at 566).
However, that obligation is not triggered unless the inmate
actually requests that the evidence be presented and
considered at the hearing. Both the UDC Counselor and the DHO
expressly stated in their respective reports that LaBarge
made no request for such evidence. [Record No. 10-5 at 4-6,
7] The only support for LaBarge's allegation that he did
make such a request is his own statements to that effect.
reviewing court is provided only with the petitioner's
“bald averments” that such evidence was requested
and “cannot glean from the record a ‘strong'
inference that [petitioner] actually asked the DHO to review
specific evidence ...” the Court may justifiably decide
that the petitioner has failed to provide an adequate
evidentiary foundation upon which to conclude that his right
to present evidence in his defense was disregarded. Cf.
Tigert v. Higgins, 290 F. App'x. 93, 100 (10th
Cir. 2008); see also Whitmore v. Parker, 484 F.
App'x 227, 237 (10th Cir. 2012). The record in this case
squarely contradicts LaBarge's contention that he
requested this evidence, and there is no basis to suppose
that the source of that record, the UDC Counselor and the