United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. Wilhoit, Jr. United States District Judge
inmate Jackie Roberts has filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241
challenging the imposition of prison disciplinary sanctions.
[D. E. No. 1] This matter is before the Court to conduct an
initial screening of Harris's petition. 28 U.S.C. §
2243; Alexander v. Northern Bureau of Prisons, 419
F.App'x 544, 545 (6th Cir. 2011).
October 5, 2015, Officer Grose was conducting surveillance of
the prison recreation grounds via security camera when he
noticed three inmates smoking near a small shelter on the
yard. He radioed this information to Officer Ison, who
approached the area and saw the three men, including Roberts,
sitting at a table passing around a single cigarette and
exhaling smoke. Ison searched the inmates but didn't find
the cigarette. [R. 1-1 at 4] Roberts was initially charged
with Smoking Where Prohibited, a Code 332 disciplinary
offense, but that charge was later amended to Possession of
Non-Hazardous Contraband, a Code 331 offense. [R. 1-1 at 1,
Disciplinary Hearing Officer ("DHO") held a hearing
on October 28, 2015. In response to the charges, Roberts
issued a blanket denial, contending that neither he nor his
associates were smoking at all. Unconvinced, the DHO relied
upon the statements of both reporting officers that they saw
Roberts smoking. Roberts also complained that he couldn't
be found guilty of possessing a cigarette since it was never
found. The DHO noted that the Officer Ison saw him exhaling
cigarette smoke, a clear indication that he had possessed a
cigarette. The DHO also noted that cigarettes found in prison
are often handmade and much smaller than their commercial
counterparts, and hence can be quickly swallowed by the
inmate or thrown into grass where they can be very difficult
to find. The DHO found Roberts guilty of the offense and
imposed various sanctions, including the disallowance of
fourteen days of good conduct time. [R. 1-1 at 3-6]
appealed the disciplinary conviction on numerous grounds, but
the BOP's Mid-Atlantic Regional Office denied his appeal
in January 2016. In doing so, it invoking its authority
pursuant to BOP Program Statement 5270.09 to modify the
charge to Smoking Where Prohibited (the original charge), and
an amended DHO Report was issued shortly thereafter. [R. 1-1
at 7-13] Roberts indicates that the BOP's Central Office
never responded to his final appeal.
prison disciplinary board takes action that results in the
loss of good time credits in which the 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 advanced 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
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).
challenge to the sufficiency of the evidence is without
merit. This Court's review of whether there was
"some evidence" to support the DHO's factual
determinations is extraordinarily deferential:
"[ascertaining whether this standard is satisfied does
not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of
the evidence. Instead, the relevant question is whether there
is any evidence in the record that could support the
conclusion reached by the disciplinary board."
Hill, 472 U.S. at 455-56 (emphasis added). Two
officers saw Roberts and the other inmates smoking, first by
surveillance camera and then in person. The officers were not
required to obtain physical evidence of the cigarette; their
personal observations of Roberts smoking provided more than
sufficient evidence to find him guilty of either smoking in
an unauthorized area or possession of contraband. The
disciplinary conviction was therefore supported by some
evidence and comports with the requirements of due process.
also complains that: the Unit Disciplinary Committee took six
days to amend the Incident Report after it was first issued;
he never received a copy of the UDC's findings and
recommendations; the DHO who conducted the hearing was an
officer from his prison rather than an "outside"
DHO from another prison; and MARO amended the charge for
which he was found guilty. Each of these actions were taken
in conformity with BOP regulations, and none provide a basis
to disturb his disciplinary conviction.
"[t]he UDC will ordinarily review the incident report
within five work days after it is issued, not counting the
day it was issued, weekends, and holidays." 28 C.F.R.
§ 541.7(c). The amended incident report was issued on
October 11, 2015, one day before the five-day period ended
when the date of issuance and weekend days are excluded. The
BOP complied with its regulations.
because Roberts was sentenced under the PLRA, see United
States v. Roberts, No. 6: 11-CR-50-GFVT-1 (E.D. Ky.
2011), the loss of fourteen days of good conduct time was a
mandatory sanction for his "moderate severity"
offense. 28 C.F.R. §§ 541.4(a)(2), (b)(3). Only a
DHO can order good conduct time forfeited or disallowed, 28
C.F.R. § 541.7(f), so the UDC was required to
automatically refer Roberts's incident report to a DHO.
28 C.F.R. § 541.7(a)(4). When it did so, the regulations
direct the UDC to state its reasons for the referral and to
recommend sanctions, 28 C.F.R. § 541.7(g), but this
generally consists of nothing more than a statement that the
referral was required so that the DHO can impose the
mandatory loss of good conduct time if guilt is found.
Roberts was provided with the amended Incident Report the day
it was issued and two weeks before the DHO hearing [R. 1-1 at
2], and due process required no more than that.
Wolff, 418 U.S. at 563-66.
the fact that the DHO was also an officer at the prison does
not run afoul of the BOP's regulations. 28 C.F.R. §
541.8(b). It is true that "[a]n impartial decisionmaker
is a fundamental requirement of due process that is fully
applicable in the prison context." Gwinn v.
Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004). But a
mere allegation of bias does not undermine the presumption of
integrity afforded a prison disciplinary tribunal; instead,
the petitioner must provide "some substantial
countervailing reason to conclude that a decisionmaker is
actually biased with respect to factual issues being
adjudicated." Withrow v. Larkin, 421 U.S. 35,
46-47 (1975); Tonkovich v. Kan. Bd. of Regents, 159
F.3d 504, 518 (10th Cir. 1998). Roberts's suggested
evidence of bias - the mere fact that the DHO worked with
other officers at the prison - is wholly insufficient to
While it might well be desirable to have persons from outside
the prison system sitting on disciplinary panels, so as to
eliminate any possibility that subtle institutional pressures
may affect the outcome of disciplinary pressures may affect
the outcome of disciplinary cases and to avoid any appearance
of unfairness, in my view due process is satisfied as long as
no member of the disciplinary board has been involved in the
investigation or prosecution of the particular case, or has
had any other form of personal involvement in the case.
Wolff, 418 U.S. at 592 (Marshall, J., concurring).
The DHO was not involved in either the investigation or
prosecution of the incident report in this case, and Roberts
has provided no viable factual basis to demonstrate or even
suggest bias. Cf. Lasko v. Holt, 334 F.App'x 474
(3d Cir. 2009).
the regional office acted within its authority to modify the
prohibited action code of which Roberts was found guilty
based upon the same facts already found by the DHO. 28 C.F.R.
§ 541.8(i); Program Statement 5270.09 Ch. 5 (July 8,
2011). In doing so the regional office did not change or
increase any sanction imposed and, contrary to Roberts's
suggestion, made no new findings of fact. Rather, it merely
revised the prohibited action code to conform to its view of
the offense supported by the evidence. Nor is there any
factual inconsistency between the DHO's findings and the
regional office's action: while an inmate might possess a
cigarette without smoking it, he cannot smoke a cigarette
without possessing it. ...