Opinion
No. 4:CV-10-0189.
May 28, 2010
(Petition Filed 1/25/10)
MEMORANDUM AND ORDER
Sean Silcox, an inmate currently confined in the Low Security Correctional Institution, Allenwood ("LSCI-Allenwood"), Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Named as respondent is Warden William Scism. Petitioner claims that while previously incarcerated at the Residential Re-entry Center, Newport News, Virginia, his due process rights were violated during the course of a prison disciplinary hearing, where he was found guilty of the prohibited act of making, possessing or using alcohol. (Doc. 1, petition). Specifically, he seeks to have the incident report sanctions expunged and immediate release. Id. The petition is ripe for disposition and, for the reasons that follow, will be denied.
Background
On May 5, 2009, upon completion of the 500 Hour Residential Drug Program ("RDAP") at the Federal Prison Camp in Cumberland, Maryland ("FPC Cumberland"), Silcox was released to a Residential Re-entry Center ("RRC") in Newport News, Virginia. (Doc. 3, Ex. 1, Declaration of Susan Albert, Paralegal Specialist, Federal Correctional Complex at Allenwood, at ¶ 5).
On June 23, 2009 at 7:08 p.m., Silcox was asked by an RRC staff member at the Rehabilitation Services #2 center to provide a random urine sample. Id. at ¶ 8. Silcox conceded and the sample was sent to Redwood Toxicology Lab located in Santa Rosa, California. Id.
On July 8, 2009, at 7:28 a.m., the test results from Silcox's random urine sample were received at the RRC and showed a positive reading for alcohol. Id.
On July 8, 2009, at 8:51 p.m. Silcox was served with and Incident Report for "Making, Possession, or using Intoxicants" in violation of Disciplinary Code Section 222. (Doc. 3, Ex. 1, Att. 1, Incident Report). The incident report, which was written by James White, Urine Monitor, reads as follows:
On June 23, 2009, at 7:08 pm, inmate Silcox, Sean, Reg #47216-083 was asked by staff member James White, urine monitor of Rehabilitation Services, Inc, #2 to provide a random urine sample. Inmate Silcox, Sean #47216-083 urine sample was sent to Redwood Toxicology Laboratory located in Santa Rosa, CA. On July 8, 2009 at 7:28 am, the test results from inmate Silcox, Sean #47216-083 random urine sample was received in Rehabilitation Services, Inc. #2, which read:POS .................. Alcohol (Ethanol) ........... 0.057gm/dl Confirmed by gas chromatography
Therefore, inmate Silcox, Sean #47216-083 is being charged with BOP Code #222 — Making, possessing, or using intoxicants.Id. At the time he was served with the incident report, petitioner also acknowledged that he was advised of the rights afforded him at a Center Discipline Committee hearing. Id.
On July 21, 2009, Silcox was served with a Notice of Center Discipline Committee Hearing, informing him that a hearing before the Center Discipline Committee ("CDC") would be held on July 23, 2009 at 4:30 p.m., at the Rehabilitation Services #2 Center. (Doc. 1, Ex. 1, Att. 2, Notice of Center Discipline Committee Hearing). Petitioner acknowledged notification of the hearing and elected not to have a staff representative. Id.
On July 23, 2009, Silcox appeared before the CDC. (Doc. 3, Ex. 1, Att. 3, CDC Report). Petitioner waived staff representation, as well as witnesses. Id. Petitioner did not raise any procedural issues or present written documentation as evidence. Id. Silcox denied the charges, stating that he "had been using mouthwash 2-3 times a day that contained alcohol" and that he hasn't "drank alcohol in 5 years." Id. The CDC determined that the act was committed as charged. Id. The documentary evidence which the CDC considered in making their determination included the Incident Report and Investigation, and the lab report from Redwood Toxicology. Id. The CDC recommended that Silcox be deemed a transitional drug abuse treatment ("TDAT") failure; a loss of twenty-seven (27) days good conduct time and a disciplinary transfer. Id. The CDC documented their reasons for the sanctions given as follows:
Substance abuse and complete abstinence is of paramount importance while residing in the RRC. Inmate Silcox has placed himself, his peers, and the community in danger with his inability to refrain from all alcohol use. He understands that he, and he alone, is responsible for his actions and their consequences.Id. Silcox was advised of his appeal rights at the conclusion of the hearing. Id.
On August 6, 2009, the CDC report was reviewed by the Discipline Hearing Officer ("DHO"), who certified the findings of the CDC and imposed the sanctions of a disciplinary transfer, TDAT failure and loss of twenty-seven (27) days good conduct time. Id.
On August 12, 2009, Silcox was transferred from the RRC to LSCI-Allenwood. (Doc. 3, Ex. 1, Albert Decl. at ¶ 6).
Discussion
Liberty interests protected by the Fifth Amendment may arise either from the Due Process Clause itself or from statutory law.Torres v. Fauver, 292 F.3d 141 (3d Cir. 2002). It is well-settled that "prison disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Nevertheless, the Supreme Court found that there can be a liberty interest at stake in disciplinary proceedings in which an inmate loses good conduct time. Id. Since petitioner's sanctions did include the loss of good conduct time, petitioner has identified a liberty interest in this matter.
In Wolff, the Supreme Court set forth the following minimum procedural due process rights to be afforded to a prisoner accused of misconduct in prison which may result in the loss of good time credit: (1) the right to appear before an impartial decision-making body; (2) twenty-four hour advance written notice of the disciplinary charges; (3) an opportunity to call witnesses and present documentary evidence in his defense when it is consistent with institutional safety and correctional goals; (4) assistance from an inmate representative if the charged inmate is illiterate or complex issues are involved; and (5) a written decision by the fact finder of the evidence relied upon and the rationale behind the disciplinary action. Wolff, 418 U.S. at 563-67. The Supreme Court has held that the standard of review with regard to the sufficiency of the evidence is whether there is "any evidence in the record that could support the conclusion reached by the disciplinary board." Superintendent v. Hill, 472 U.S. 445-46 (1985); see also Griffin v. Spratt, 969 F.2d 16, 19 (3d Cir. 1992). If there is "some evidence" to support the decision of the hearing examiner, the court must reject any evidentiary challenges by the plaintiff. Hill, 472 U.S. at 457.
The Bureau of Prisons' inmate disciplinary procedures are codified at 28 C.F.R. § 541, et seq., and entitled, Inmate Discipline and Special Housing Units. These procedures are intended to meet or exceed the due process requirements prescribed by the Supreme Court. See Von Kahl v. Brennan, 855 F.Supp. 1413, 1418 (M.D.Pa. 1994). Pursuant to these regulations, staff shall prepare an Incident Report when there is reasonable belief that a violation of BOP regulations has been committed by an inmate and the staff considers informal resolution of the incident inappropriate or unsuccessful. 28 C.F.R. § 541.14. The incident is then referred to the UDC for an initial hearing pursuant to § 541.15. The UDC hearing is "ordinarily held within three work days from the time staff became aware of the inmate's involvement in the incident" and does not include the initial day staff learns of the incident, weekends or holidays. See 28 C.F.R. § 541.15(b). This period may be extended for good cause shown by either the inmate or staff. See 28 C.F.R. § 541.15(k). If the UDC finds that a prisoner has committed a prohibited act, it may impose minor sanctions. If the alleged violation is serious and warrants consideration for more than minor sanctions, or involves a prohibited act listed in the greatest severity category, the UDC must refer the matter to a disciplinary hearing officer for a hearing. 28 C.F.R. § 541.15. "The DHO shall give the inmate a written copy of the decisions and disposition, ordinarily within 10 days of the DHO's decision." 28 C.F.R. § 541.17(g).
Silcox was charged with an offense in the high severity category. See 28 C.F.R. § 541.13, Table 3.
Construing this pro se petitioner's claims liberally, to the extent that Silcox claims that his delay in the receipt of his initial hearing violated the BOP's regulations and his due process rights, the Court finds no merit to this argument.
Silcox received his incident report on Wednesday, July 8, 2009. The "ordinary" three-day period to conduct his hearing expired on Monday, July 13, 2009. Silcox received notice of July 21, 2009, that his CDC hearing would be held on July 23, 2009. While the language of the BOP's disciplinary proceedings note that UDC hearings are "ordinarily" held within three days of staff's learning of their involvement in an incident, the Court finds that petitioner's singular challenge to the delay in his initial hearing does not automatically equate to a violation of his Due Process rights. See Flanagan v. Shively, 783 F.Supp. 922, 931 (M.D. Pa. 1992) ("The Constitution does not require strict adherence to administrative regulations and guidelines.") The Constitution only requires compliance with minimal federal due process standards protected by the Due Process Clause of the Fourteenth Amendment. Id. Wolff does not set a three- or seven-day limit, or any time limit, for the hearing. No Due Process violation occurred by holding petitioner's initial hearing outside of the "ordinary" three-day period.
Furthermore, the true measure of whether a due process violation occurred as a result of a delay in Silcox's disciplinary process is whether he suffered harm or some form of prejudice as a result. See Von Kahl v. Brennan, 855 F.Supp. 1413, 1418 (M.D.Pa. 1994). This is not a case that petitioner was denied a hearing before the UDC, or in this case, the CDC or DHO. He simply argues that "procedural issues" were not followed. Nowhere in his petition does Silcox argue that he was harmed, prejudiced or otherwise disadvantaged by the delay in his CDC hearing. Von Kahl, 855 F.Supp. at 1421-1422 ("[T]his court is reluctant to overtax and/or hamstring prison officials' execution of disciplinary policies and procedures by mandating an automatic remand for technical non-compliance with a regulation, absent some showing of prejudice to the inmate."). Thus, this Court finds no violation of his Due Process rights associated with petitioner's claim, and therefore, will deny habeas relief.
Silcox was afforded all of the required procedural rights set forth in Wolff. He received timely notice of the incident report. He was properly informed of his rights before the hearing, as well as given the opportunity to make his own statement, present documentary evidence, have a staff representative, and to present witnesses on his behalf. Petitioner chose to proceed without staff representation. Petitioner also received a written decision setting forth the evidence relied upon by the DHO and the rationale behind the decision, and his right to appeal the decision.
Since petitioner was afforded all of his procedural rights, the only remaining issue is whether there was sufficient evidence to support the decision by the DHO. In addition to the investigative report, the DHO also considered the lab report from Redwood Toxiology, to conclude that the greater weight of the evidence supported a finding of guilt. Thus, based on the foregoing, the Court concludes that the evidence before the DHO was sufficient to support the outcome of the hearing and meets the requirements imposed by the Due Process Clause.
Finally, the Court finds that all sanctions imposed by the DHO were within the limits of 28 C.F.R. § 541.13. Petitioner was found guilty of a 200-level, high severity prohibited act. Pursuant to 28 C.F.R. § 541.13, the following are some of the sanctions available for 200 level offenses:
B.1. Disallow ordinarily between 14 and 27 days of good conduct time;
C. Disciplinary transfer (recommend)28 C.F.R. § 541.13 (Tables 3 and 4). Thus, the sanctions imposed by the DHO in the present case (i.e., loss of 27 days of good conduct time and disciplinary transfer) were consistent with the severity level of the prohibited act and within the maximum available to the DHO. An appropriate Order accompanies this Memorandum Opinion.
ORDER
For the reasons set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
1. The petition for writ of habeas corpus (Doc. 1) is DENIED.
2. The Clerk of Courts is directed to CLOSE this case.