United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
inmate and pro se petitioner Jackie Borden disputes
a prison disciplinary decision that cost him twenty-seven
days of good time credit. Borden alleges two violations of
his due process rights-first, he claims he was not informed
of his right to the assistance of a jailhouse lawyer and,
second, he alleges he was not provided with the disciplinary
hearing officer's report in a timely fashion. For the
reasons below, the Court finds no constitutional violation
and DENIES Borden's 28 U.S.C. §
2241 petition for habeas relief.
who is serving a 168-month federal sentence for bank robbery,
is incarcerated at the United States Penitentiary-McCreary in
Pine Knot, Kentucky. [See R. 10 at 1.] In January
2018, another USP-McCreary inmate assaulted Borden. Although
Borden did not begin the fight, video footage of the incident
showed Borden fighting back and also striking the assaulter.
Id. at 2. In light of this, prison staff issued an
incident report charging Borden with “Code 224,
Fighting With Another Person.” Because Code 224
actually applies to a different charge (“Assaulting Any
Person”), five days later prison staff issued Borden a
new incident report correcting the coding mistake. On January
29, 2018, Borden was provided with the corrected incident
report. Id. at 2-3. Following issuance of the
incident report, prison staff were given at least two
extensions of time to conduct Borden's disciplinary
hearing. Id. at 3.
February 27, 2018, Borden signed and acknowledged receipt of
the Bureau of Prisons' Inmates Rights at Discipline
Hearing Form, which informed Borden, among other things, of:
(1) his right to have a full-time member of the staff
represent him, and (2) his right to appeal the disciplinary
hearing officer's decision within twenty days of
receiving written notice of the decision (the “DHO
report”). Borden requested a full-time staff member
represent him at the hearing, but he did not request
additional witnesses. Id. at 3-4. The Unit
Disciplinary Committee conducted Borden's hearing and
ultimately recommended that a disciplinary hearing officer
penalize Borden by revoking twenty-seven days of his good
time credit. Id. at 4. Then at the DHO hearing,
which occurred on March 6, 2018, Borden was sanctioned with
the recommended loss of twenty-seven days and other
penalties. Id. at 5. Following the hearing, the DHO
prepared and signed his report on May 9, 2018, and Borden
received the written DHO report on June 6, 2018. Id.
the March 6 DHO hearing but before Borden received the DHO
report, Borden tried to appeal the loss of his good time
credit. However, his appeal was rejected for failure to
include the DHO report. Id. at 6. Once Borden
finally received the DHO report on June 6, he did not file a
new appeal within twenty days as he was originally
instructed. Instead, he continued, unsuccessfully, to
litigate the original deficient appeal that he filed before
he received the report. Id. at 6-7. Borden then
filed the present petition for habeas relief in this Court.
§ 2241 petition alleges two violations of his due
process rights. First, Borden claims he was denied the
procedural protections set forth in Wolff v.
McDonnell, 418 U.S. 539 (1974), because he was not
informed of his right to the assistance of a competent inmate
during his disciplinary proceeding. [R. 1-1 at 3-4.] Second,
Borden maintains that his rights were violated because he did
not receive the written DHO report until after he began the
administrative appeal process. Id. at 4. After full
briefing, the matter is now ripe for the Court's review.
United States Supreme Court has articulated certain minimum
procedures that prison officials must follow before taking
away an inmate's good time credit during disciplinary
proceedings. See Sandin v. Conner, 515 U.S. 472,
477-78 (1995); Wolff, 418 U.S. 539. When good time
credit is on the table as a sanction, a prisoner is entitled
to advanced, written notice of the charges; the opportunity
to call witnesses and present other evidence in his or her
defense; and a written decision explaining the grounds used
to determine the sanctions imposed. Wolff, 418 U.S.
at 563-66. Further, a prisoner does not have a constitutional
right to retained or appointed counsel in a disciplinary
proceeding as a matter of course. See Id. at 570.
However, if the inmate is illiterate or if the issues are so
complex that the inmate cannot ably navigate his case, the
inmate “should be free to seek the aid of a fellow
inmate, or . . . help from the staff or from a sufficiently
competent inmate designated by the staff.” Id.
Borden argues some of these required minimum procedures-and,
in turn, his constitutional right to due process-were
violated during his disciplinary proceeding. But for a
variety of reasons, Borden is not entitled to the relief he
initial matter, Borden failed to exhaust his administrative
remedies. Before filing a 28 U.S.C. § 2241 petition, an
inmate must exhaust his administrative remedies through the
Federal Bureau of Prisons' administrative grievance
procedures. See Little v. Hopkins, 638 F.2d 953,
953-54 (6th Cir. 1981). According to the Supreme Court,
“proper exhaustion of administrative remedies . . .
means using all steps that the agency holds out, and doing so
properly.” Woodford v. Ngo, 548 U.S. 81, 90
(2006) (internal quotation marks and citation omitted). The
record indicates that Borden did not properly pursue
administrative relief. Instead, he attempted to file an
administrative appeal prior to receiving a copy of the DHO
report, which he was required to attach to his appeal. Then,
when informed of his timing error, he failed to remedy the
error by following the instructions he had received all
along-to begin the administrative grievance process by filing
an appeal within twenty days of receiving the DHO report.
[See R. 10-1 at 3-4 (explaining that Borden signed
and acknowledged his right to appeal the DHO's decision
within twenty days of notice of the decision).] Accordingly,
and as thoroughly explained in the Warden's response and
attached exhibits, Borden failed to properly exhaust his
administrative remedies. [See R. 10 at 7-12; R.
addition to the exhaustion issue, Borden's two due
process claims are meritless. First, Borden claims he was not
instructed about his right to a jailhouse lawyer, but that is
not a due process violation. Wolff v. McDonnell does
not require prisons to allow an inmate assistance from a
fellow inmate during a disciplinary proceeding, even if the
inmate is illiterate or the case particularly complex. To the
contrary, Wolff specifically contemplates that a
prison facility may deny inmates the aid of their peers. In
that situation, prisons should simply provide inmates with
“adequate substitute aid in the form of help from the
staff . . . .” Wolff, 418 U.S. at 570.
Illiterate inmates or inmates struggling with complex issues
should receive at least some assistance, but that assistance
can be either the assistance of a
staff person or the assistance of a
competent jailhouse lawyer. Id. Borden, who claims
that he “was actually/functionally illiterate regarding
these process [sic] and that the issues were too complex for
him” [see R. 1-1 at 4], was provided with the
assistance of a full-time staff member. [See R. 10
at 4.] Thus, his constitutional rights were not violated with
respect to this claim.
claim regarding the timing of the DHO report also fails.
Although Borden did not receive the DHO report until after he
began the appeals process, Borden does not point to any
constitutional requirement that the
DHO report be provided within a certain period of time.
[See R. 1-1 at 4.] Borden's relief suggests the
timing of the DHO report violated BOP regulations and/or
Program Statements [see R. 12 at 4-5], but BOP
regulations are “primarily designed to guide
correctional officials in the administration of a
prison”, not to “confer rights on inmates.”
Sandin v. Conner, 515 U.S. 472, 481-82 (1995). Similarly, BOP
program statements are merely internal interpretive rules,
see Reno v. Koray, 515 U.S. 50, 61 (1995), and do
not create enforceable rights or obligations.
is no dispute that Borden was required under Wolff
to receive advance notice of the charges against him and,
eventually, the DHO report. But Borden received both.
[See R. 10-1 at 2-4 (indicating Borden received
advance written notice of the charges on January 29, 2018);
id. at 5 (indicating Borden received the DHO report
on June 6, 2018).] Further, Borden was instructed repeatedly
that the deadline to file an appeal was within twenty
calendar days after receiving the
DHO report. [See, e.g., id. at 5-6.]