United States District Court, S.D. Indiana, Terre Haute Division
OPINION AND ORDER
Robert
L. Miller, Jr. Judge
Jamal
Kareem Warren is serving a term of imprisonment at the
Federal Correctional Complex in Terre Haute. His petition
under 28 U.S.C. § 2241 challenging a prison disciplinary
proceeding while he was imprisoned at Federal Correctional
Institution, Oakdale [Doc. No. 1] pends before the court. His
petition claims that he was denied due process when: (1) his
appeal of the disciplinary hearing officer's report was
denied as untimely; (2) the incident report was allegedly
issued 18 days after the misconduct; and (3) the sanctions
imposed allegedly exceeded those authorized by law. The
factual and legal issues raised can be resolved on the
record, so no hearing is necessary. For the reasons that
follow, the court denies Mr. Warren's petition.
Mr.
Warren is serving a sentence of 102 months of imprisonment to
be followed by 120 months of supervised release for engaging
in interstate transportation of a minor with the intent to
engage in criminal sexual activity in violation of 28 U.S.C.
§ 2423(a). While at FCI Oakdale Louisiana, the Bureau of
Prisons accused him of infractions of BOP rules, including
use of mail for abuses, use of the telephone for abuses, and
giving money to another inmate without staff authorization.
Following a hearing on the charges with Mr. Warren present,
the disciplinary hearing officer imposed a sanction of a loss
of a total of 218 days of good conduct time, segregation
time, and a loss of privileges. After exhausting his
administrative remedies, Mr. Warren filed this petition
alleging due process violations.
“This
court does not sit in review of the correctness of the
[Disciplinary Hearing Officer's] decision; [Mr. Warren]
is entitled to relief only if the procedures used to arrive
at that sanction do not comport with due process.”
Piggie v. Cotton, 342 F.3d 660, 667 (7th Cir. 2003).
“Federal inmates must be afforded due process before
any of their good time credits-in which they have a liberty
interest-can be revoked.” Jones v. Cross, 637
F.3d 841, 845 (7th Cir. 2011).
In the context of a prison disciplinary hearing, due process
requires that the prisoner receive (1) written notice of the
claimed violation at least 24 hours before hearing; (2) an
opportunity to call witnesses and present documentary
evidence (when consistent with institutional safety) to an
impartial decision-maker; and (3) a written statement by the
fact-finder of the evidence relied on and the reasons for the
disciplinary action.
Id.
Mr.
Warren first argues that that he was denied due process
because his appeal of the disciplinary hearing officer's
report was denied as untimely. He contends that he timely
filed his appeal, which the regulations require he submit
within 20 days of being served the disciplinary hearing
officer's report, and any delay was due to the actions of
the BOP staff, who housed him in an SHU and held his outgoing
mail for inspection. The warden doesn't dispute that Mr.
Warren's appeal was denied as untimely and, for purposes
of this petition, the court will assume without deciding that
Mr. Warren's appeal was only untimely because of the
actions of BOP personnel so the BOP should have accepted it.
Mr.
Warren argues that 28 C.F.R. § 541.8 grants him a right
to appeal and that BOP violated his due process rights when
it didn't adjudicated his appeal. The regulation itself
doesn't “create[ ] a liberty interest protected by
the Due Process Clause.” Thomas v. Ramos, 130
F.3d 754, 760 (7th Cir. 1997). Federal inmates have a due
process interest in their good time credits and, before they
can be revoked, due process requires that a prisoner receive
timely written notice of the alleged violation, the
opportunity to present evidence to an impartial
decision-maker, and receive a written statement with the
basis for the disciplinary action taken. Jones v.
Cross, 637 F.3d at 845. Mr. Warren hasn't
demonstrated that due process required a fully adjudicated
administrative appeal, especially in this case, where the BOP
hasn't argued that Mr. Warren didn't exhaust his
administrative remedies and his 2241 is properly before this
court.
Mr.
Warren next argues that he was denied due process because he
didn't timely receive a copy of the incident report. Mr.
Warren asserts that the alleged misconduct occurred on July
6, 2015, the BOP staff knew of the alleged misconduct that
day because they informed him of it, and yet BOP didn't
issue him an incident report until July 24, 2015. Mr. Warren
believes this violated his due process rights. Mr.
Warren's argument relies on his reading of a BOP
regulation, which he claims requires the BOP issue him an
incident report within 24 hours of BOP staff learning of the
incident. See 28 C.F.R. § 541.5(a)
(“[y]ou will ordinarily receive the incident report
within 24 hours of staff becoming aware of your involvement
in the incident”).
The
court of appeals considered this argument in Jones v.
Cross, 637 F.3d at 846, and held that a prisoner
doesn't have a “liberty interest in the time frames
set forth in § 541.15(a).” “[W]ith respect
to timing, all that due process requires is that prisoners be
given written notice of alleged violations at least 24 hours
before a disciplinary hearing.” Id. Mr. Warren
acknowledges that he received the incident report on July 24,
2015 and the evidence shows that the disciplinary hearing was
held on August 5, 2015. [Doc. No. 12-5 at 1]. Accordingly,
“even assuming there was a violation of BOP regulations
in this case, that violation did not infringe [Mr.
Warren's] constitutionally-protected rights.”
Id.
Mr.
Warren also argues that he was denied due process because the
sanctions imposed allegedly exceeded those authorized by law,
contending that the BOP imposed a sanction of a loss of a
total of 218 days of good conduct time, but the BOP's
regulations allow for a sanction of no more than 54 days of
good conduct time in this case.[1]
Mr.
Warren was sanctioned for violations of use of mail for
abuses, use of telephone for abuses, and giving money to
another inmate without staff authorization. [Doc. No. 12-5 at
4]. The BOP regulations categorize the use of mail and
telephone for abuses infractions as “high severity
level prohibited acts, ” while giving money to another
inmate without staff authorization is considered a
“moderate severity level prohibited act.” 28
C.F.R. § 541.4 (table 1). The regulation allows for a
sanction of a loss of 27 days of good time for each high
severity level prohibited act and 14 days of good time for
each moderate severity level prohibited act. Id. The
Disciplinary Hearing Officer imposed a sanction of a loss of
68 days of good time for those violations (27 days for use of
mail for abuses, 27 days for use of telephone for abuses, and
14 days for giving money to another inmate without staff
authorization).
Because
the BOP had sanctioned Mr. Warren for the same conduct
earlier that year, [Doc. No. 12-4 at 1], [2] he was subject to
additional sanctions under the regulations, including a
forfeiture of up to 90 days of non-vested good time for each
high severity level prohibited act and 45 days of non-vested
good time for each moderate severity level prohibited act. 28
C.F.R. ยง 541.4 (table 2). Under this authority, the
disciplinary hearing officer also imposed a sanction of a
loss of 150 days of non-vested good time (60 days for use of
mail for abuses, 60 days for use of telephone for abuses, and
30 days for giving money to another inmate without staff
authorization). [Doc. No. 12-5 at 4]. ...