Opinion
21-CV-9245 (AT) (JLC)
10-17-2022
PHILIP HUGH WENTZEL, Petitioner, v. W.S. PLILER, WARDEN, Respondent.
The Honorable Analisa Torres, United States District Judge
REPORT AND RECOMMENDATION
JAMES L. COTT UNITED STATES MAGISTRATE JUDGE
Philip Hugh Wentzel, who is currently incarcerated at FCI Otisville, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. He challenges a disciplinary determination finding him guilty of fighting with another inmate on November 16, 2020, which resulted in the loss of good time credits. Wentzel contends that the disciplinary hearing violated the internal regulations of the United States Bureau of Prisons (“BOP”) and his due process rights under the Fifth Amendment. For the reasons set forth below, Wentzel's petition should be denied.
This petition was referred to me for a report and recommendation on December 14, 2021. Dkt. No. 9.
I. BACKGROUND
Wentzel alleges the following facts in his petition. In 2012, he was convicted in the United States District Court for the Eastern District of Wisconsin and sentenced to 480 months' imprisonment. Dkt. No. 1 at 1, 12. During his incarceration, Wentzel has accrued 54 days of good time credit. Id. at 18. He has been at FCI Otisville since 2017, where he has “taken on leadership roles in his faith community and become an instructor/tutor” in the vocational program. Id. at 12. Wentzel had “no history of disciplinary infractions” prior to the incident giving rise to this suit. Id.
The page numbers refer to the numbers produced by the Electronic Case Filing (“ECF”) system.
A. The Incident
On November 16, 2020, Wentzel was in the dayroom of Unit G-A at FCI Otisville at about 7:30 a.m., finishing his breakfast late because he had visited the Health Services lab before picking up his meal. Id. Inmate Freddie Lyles approached the table where Wentzel was seated alone and demanded that he move so that Lyles could use the buffer in that area of the dayroom floor. Id. According to Wentzel, Lyles had “a significant disciplinary history” that included “fights and gang violence.” Id. at 9. Wentzel told Lyles that he needed a few minutes to finish eating. Id. at 12.
According to the Special Investigative Services (“SIS”) report, which drew on an interview with him, Lyles had flipped the common area tables on their sides in order to mop the floor. He left to get a mop, and when he returned, one of the tables was flipped back over on its legs, and Wentzel was sitting at the table eating breakfast. Lyles asked Wentzel to sit somewhere else so that he could mop the floor and Wentzel refused. Dkt. No. 19-2 at 13. SIS technician B. Clemens wrote in the report that Lyles stated that “he felt disrespected by Philip Wentzel.” Id. at 11. In his reply papers, Wentzel questions where Clemens obtained this information because the summaries of the interviews with Lyles and others do not include all of these facts. Dkt. No. 25 at 10.
Wentzel “calmly stated that he would be moving soon, as soon as he finished eating” and explained that he had been delayed “due to his call out in Health Services.” Id. Lyles “became agitated and threatened to flip the table over.” Id. Wentzel slid his cereal bowl to the center of the table so that Lyles could see it was nearly empty, but Lyles “attacked the bowl with his hand, sending it flying into the air, spraying milk” on Wentzel's face and glasses. Id. Wentzel also “pushed his empty Styrofoam container over the table,” and Lyles also hit that with his hand. Id. at 12-13. Then Lyles “reached across the table and slapped the still-seated [Wentzel] on the left side of his face,” which knocked his glasses from his face and “caused a laceration to the left side of [his] nose.” Id. at 13. Other prisoners then restrained Lyles. Id. at 22-23. Wentzel gathered his belongings and left, “without returning any blows or fighting back in any way.” Id. at 13.
According to Wentzel, on the same day of the incident, Correctional Counselor Juan Melendez made a statement that Wentzel viewed as “promoting the use of violence by his unit orderlies in order to clean whenever they wanted to.” Dkt. No. 25 at 7.
B. Disciplinary Charges and Unit Disciplinary Committee hearing
FCI Otisville staff escorted both Wentzel and Lyles to the Segregated Housing Unit (“SHU”). Id. The Special Investigative Services (“SIS”) investigative report indicates that SIS technician B. Clemens interviewed Wentzel in the SHU at 12:15 p.m. on November 16, 2020, the date of the incident, and that Wentzel stated the following:
Lyles told him to move so he could flip the table in order to mop the common area floor. Wentzel said when he refused, Lyles became angry and pushed Wentzel's bowl of cereal onto the floor. Wentzel stated
that's when Lyles came around the table and open hand smacked him in the face. Wentzel said he did not push his clam shell tray into Lyles but only pushed it into the center of the table.Dkt. No. 25 at 20.
Wentzel contends that neither Clemens nor anyone else from SIS ever interviewed him, and attaches to his reply papers a statement from his cellmate, Timothy Piper, to corroborate that he was never interviewed. Id. at 4-6, 25-26. In his administrative appeal, Wentzel stated that SIS technicians “came to [his] cell 1-2 hours after the incident to speak to [his] cellmate about another matter. As they were leaving, one of them stated to him, ‘Yeah, we saw it (the video footage). You were assaulted.'” Dkt. No. 1 at 36.
Three days after the incident, on November 19, 2020, Wentzel observed an SIS officer interviewing Lyles in the SHU. Id. at 13. In his interview, Lyles relayed that Wentzel told him he would “have to wait until Wentzel is finished” and that he “felt disrespected by” Wentzel. The SIS report includes Lyles' statement that Wentzel “threw his food tray at Lyles, which made Lyles walk around the table and open hand smack Wentzel in the face.” Dkt. No. 25 at 20.
On November 23, 2020, one week after the incident, Wentzel received a disciplinary incident report charging him with “Fighting with Another Person,” in violation of Section 201 of the Prohibited Act Code. Dkt. No. 1 at 13. The following day,, Correctional Counselor Melendez conducted a Unit Disciplinary Committee (“UDC”) hearing in the SHU. Melendez provided Wentzel “a copy of his inmate rights,” read aloud to him the narrative portion of the incident report, and he asked him if it was accurate. Id. Wentzel “replied that it was not correct.” Id. at 15. Melendez refused to let Wentzel read aloud the “written defense” that he had prepared and refused to accept the document for forwarding to the Disciplinary Hearing Officer (“DHO”). Id. Melendez told Wentzel to “save it for the DHO.” Id. Wentzel then requested that Chaplain Joshua Davis be appointed as his staff representative for further proceedings. Id. at 13. The UDC Committee action report, attached to Wentzel's reply papers, indicates only that (1) at the hearing, Wentzel stated, “[i]t is not true,” and (2) the charges were referred to the DHO.Dkt. No. 25 at 28. Wentzel contends that he was “never provided” a written report of UDC findings. Dkt. No. 1 at 16.
Federal regulations governing prisoner discipline provide: “If you are charged with a Greatest or High severity prohibited act, . . . the UDC will automatically refer the incident report to the DHO for further review.” 28 C.F.R. § 541.7(a)(4).
Section A of the UDC Committee Action form provides: “It is the finding of the committee that you: Committed the Prohibited Act as charged; Did not commit a Prohibited Act; Committed Prohibited Act Code.” On Wentzel's form, Section A is blank, but Section B is checked to indicate that “The Committee is referring the charges to the DHO for further hearing.” Dkt. No. 25 at 28.
C. Disciplinary Hearing Officer Hearing
A DHO hearing by video was held on December 10, 2020. Id. At 13. Approximately 10 minutes before the hearing was scheduled to begin, Chaplain Davis met with Wentzel-the first and only time they met regarding the disciplinary matter. Id. Wentzel had prepared a written statement. Because Wentzel would remain handcuffed during the hearing, he asked Chaplain Davis if he could turn the pages for him when he read his defense. Id. at 14. Chaplain Davis and DHO Assistant “Ms. Wood” told Wentzel that reading his prepared remarks aloud would “take too long.” Id. Wentzel's written statement was taken from him, and Ms. Wood advised Wentzel after the hearing had started that she had emailed it to the DHO, who had acknowledged receipt. Id. Because Wentzel did not have his statement to read, he was unable “accurately or coherently” to present his defense. Id.
The DHO found Wentzel guilty of fighting and sanctioned him with the loss of 27 days of good time credits, which changed his projected release date from June 2, 2046, to June 29, 2046. Id. The DHO also imposed 20 days of disciplinary segregation in the SHU (in addition to the 25 days that Wentzel had already spent in administrative segregation), and six months of commissary restrictions. On December 11, 2020, Wentzel received a copy of the DHO's report and findings. Id.
Wentzel notes that Lyles, who had “a significant disciplinary history,” received the same disciplinary sanction as he did, despite his having been incarcerated for nine years without any disciplinary misconduct. Dkt. No. 1 at 9.
The DHO report summarizes Wentzel's argument at the hearing as follows:
We never raised our voices. I was calmly talking to [the other prisoner]. An argument needs to be hostile to be considered a fight. I pushed my cereal bowl toward him to show him that it wasn't empty, and the foo[d] tray was only a [Styrofoam] clamshell. The other inmates that intervened were only holding [the other prisoner] back.Id. at 31.
The DHO report provides that (1) Wentzel “stated [that he] understood [his] rights, and had no documentary evidence to present”; (2) “[t]he video does show [Wentzel] push [his] tray and bowl at inmate Lyles and then Lyles striking [Wentzel] ....”; (3) this was a “hostile argument” because there was a “verbal argument which resulted in [Wentzel] pushing [his] food bowl and tray at the other inmate and he, in turn, hitting [Wentzel]”; and (4) “the greater weight of evidence . . . supports that [Wentzel] committed the prohibited act of fighting with another person.” Id. at 32.
D. Administrative Appeals
Within a few days after receiving the DHO report, on December 14, 2020, Wentzel submitted a Regional Administrative Remedy Appeal (BP-10) to the BOP's Northeast Regional Office. Wentzel argued in the appeal that his actions-sliding his bowl and Styrofoam “clamshell” across the table-could not be considered fighting, as he “never engaged in ‘battle' or ‘combat.'” Id. at 36. Wentzel also disputed the DHO's conclusion that the verbal exchange “must have been hostile,” because it resulted in Lyles attacking Wentzel. Wentzel argued that he should not have received the same penalty as the prisoner who assaulted him. He attached to the BP-10 form the written statement that he had wanted to read at the DHO Hearing.
After significant delays, on March 20, 2021, Wentzel's BP-10 appeal was accepted. Id. at 43. On May 6, 2021, the Regional Director denied Wentzel's appeal, concluding that the incident did not implicate any due process concerns because Wentzel had notice of the charge against him, the DHO allowed Wentzel to present a defense, and the DHO considered Wentzel's written statement prior to rendering a decision. Id. at 42. The Regional Director further concluded that the DHO decision was based on the greater weight of the evidence, and the sanctions were consistent with the severity level of the prohibited conduct. Id.
On May 26, 2021, Wentzel filed a Central Office Administrative Remedy Appeal (BP-11) with the Office of the General Counsel. Id. at 43. Wentzel wrote in his appeal that he had new evidence, including that: (1) four months after the incident with him, Lyles was involved in a fight that included weapons and an assault on staff; and (2) Unit Counselor Melendez held for Lyles his job as an orderly (even though the incident took place while Lyles was on the job) and continued to pay Lyles while he was in the SHU, whereas Wentzel lost his trust fund job immediately after the incident.
The BOP responded to the appeal on October 20, 2021 (after its extended deadline of October 2). Id. at 44; Dkt. No. 4 at 1. The BOP Central Office decision states, in relevant part, that “the determination of the DHO is reasonable and supported by the evidence. Your due process rights were upheld during the disciplinary process. The sanctions imposed were commensurate to the severity level of the offense committed.” Dkt. No. 19-3 at 3.
E. Petition for a Writ of Habeas Corpus
In his petition for a writ of habeas corpus, Wentzel asserts six grounds for relief. He argues that: (1) the UDC did not consider all evidence, allow him to submit a written statement, or provide him a written report, in violation of the BOP Program Statement and federal regulations (28 C.F.R. § 541.7); (2) he was deprived of his written statement at the DHO hearing, in violation of BOP Program Statement 5270.09, and nothing in the DHO decision suggests that the DHO read or considered his statement; (3) the staff representative, Chaplain Davis, did not help him prepare and instead hindered his defense by refusing to turn pages for him and by removing his notes; (4) the DHO considered information outside the hearing that had not previously been made available to him, including the SIS investigation, photographic evidence, and a staff memo outlining the video evidence (and, he argues, it is unclear whether the DHO reviewed the video or only the memo about it); (5) the DHO decision was against the weight of the evidence because the evidence shows only that he was engaged in a verbal encounter with another inmate, not a hostile fight; and (6) the sanctions imposed on him were excessive and capricious, in that the DHO failed to consider that he was the assault victim, that he did not fight, and that the two inmates had very different disciplinary histories. Dkt. No. 1 at 15-25.
Wentzel argues that Counselor Melendez violated 28 C.F.R. § 541.7(e), which he quotes as providing that a prisoner is “entitled to make a statement and present documentary evidence” on his own behalf and that the UDC “will consider all evidence presented during its review.” Dkt. No. 1 at 15.
Wentzel also submits a written statement from inmate Timothy Marlnee, indicating that he knows Wentzel “to be a quiet, mature and respectful person in the unit.” Dkt. No. 2 at 2. Marlnee states that he was present in the dayroom during the incident, that at no time did he “hear any arguing or raised voices,” that Wentzel did not even stand up until after he was assaulted, and that Wentzel did not fight back but attempted to walk away, while Lyles had to be restrained from “going after” Wentzel again. Id. Marlnee's statement is dated October 21, 2021, after Wentzel's hearings and appeals; the statement was not submitted during the administrative proceedings, and Wentzel does not argue that he had sought to have Marlnee or any other inmate testify on his behalf during the hearings.
In his petition, Wentzel asks the Court to direct Warden Pliler to find that he did not engage in any prohibited act, to expunge the disciplinary matter from his file, to restore his good time credits, to update his “PATTERN score sheet,” and to provide back pay for the loss of his prison employment (totaling $198.00). Dkt. No. 1 at 25. In the alternative, Wentzel seeks a new evidentiary hearing, or requests the Court to further develop the record and that BOP staff be required to answer interrogatories that he submitted with his petition. Id.
Habeas corpus does not provide for money damages. See, e.g., Jenkins v. Haubert, 179 F.3d 19, 24 (2d Cir. 1999).
The usual remedy where procedural errors invalidate a prison disciplinary hearing is a new hearing. See, e.g., Giano v. Sullivan, 709 F.Supp. 1209, 1218 (S.D.N.Y. 1989) (“[A] new hearing is generally accorded where procedural errors are found to invalidate a prison disciplinary proceeding.”) (citations omitted).
II. DISCUSSION
A. Standard of Review
The Court may entertain a petition for a writ of habeas corpus from a person in custody challenging the legality of his detention on the ground that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Court has the authority to review the petition and “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled [to such relief].” 28 U.S.C. § 2243.
The Court is obliged to construe pro se pleadings liberally and interpret them “to raise the strongest arguments they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
B. Exhaustion of Administrative Remedies
A petition for a writ of habeas corpus under Section 2241 is available to a federal prisoner who challenges the execution of his sentence subsequent to his conviction. See, e.g., Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Section 2241 is the proper vehicle for habeas corpus challenges based on, among other things, prison disciplinary actions, loss of good conduct time, and alleged due process violations. Id. at 632; Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (Section 2241 petition “generally challenges the execution of a federal prisoner's sentence, including such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions”) (citations omitted); Rodriguez v. Lindsay, 498 Fed.Appx. 70, 71 (2d Cir. 2012) (considering Section 2241 petition challenging loss of 40 days of good time credits).
A prisoner may seek relief under Section 2241 “once administrative remedies are exhausted.” Rosemond v. Menifee, 137 F.Supp.2d 270, 272 (S.D.N.Y. 2000).The record establishes that Wentzel completed all levels of the BOP's exhaustion process, and Respondent does not dispute that Wentzel exhausted his administrative remedies.
BOP regulations provide that disciplinary findings may be appealed to the Regional Director within 20 calendar days of the date of decision. 28 C.F.R. §§ 542.14(d)(2), 542.15(a). A final appeal may be submitted to the General Counsel's Office within 30 calendar days of denial of relief by the Regional Director. 28 C.F.R. § 542.15(a). The filing date of an appeal is the date it is received. 28 C.F.R. § 542.18. If the prisoner does not receive a response within the time allotted for reply, including any extensions, he may consider the absence of a response to be a denial at that level. Id. The time limits at any level of review may be extended for a valid reason. 28 C.F.R. §§ 542.14(b), 542.15(a).
C. Standards for Due Process Claims
The Due Process Clause of the Fifth Amendment provides that “no person shall be . . . deprived of life, liberty, or property, without due process of law[.]” U.S. CONST. amend. V. In order to establish a violation of due process, a petitioner must demonstrate that he possessed a liberty or property interest, and that the procedures provided by the government that deprived him of that interest were constitutionally inadequate. Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989) (procedural due process analysis requires courts to examine “whether there exists a liberty or property interest which has been interfered with . . . [and] whether the procedures attendant upon that deprivation were constitutionally sufficient”); see also Kerry v. Din, 576 U.S. 86, 90 (2015).
A protected liberty interest exists when there is a recommendation for the loss of good time credits. Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (“[T]he State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest . . . is sufficiently embraced within Fourteenth Amendment ‘liberty' to entitle him to those minimum procedures appropriate under the circumstances.”); Abed v. Armstrong, 209 F.3d 63, 66-67 (2d Cir. 2000) (“[I]nmates have a liberty interest in good time credit they have already earned”).
In the context of prison disciplinary proceedings, “the only process due an inmate is that minimal process guaranteed by the Constitution, as outlined in Wolff.” Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004); see Wolff, 418 U.S. at 556 (disciplinary proceedings are distinct from criminal prosecution, and “the full panoply of rights due a [criminal] defendant . . . does not apply”). A disciplinary hearing that results in a revocation of a prisoner's good time credits satisfies due process if:
(1) the prisoner is provided written notice of the disciplinary charges at least twenty-four hours in advance of the hearing;
(2) a neutral and detached hearing body conducts the hearing;
(3) the prisoner is afforded an opportunity to present evidence and call witnesses;
(4) the prisoner is granted assistance, if necessary, to understand and prepare a defense; and
(5) the factfinder provides a written statement of the evidence relied upon in making its decision and the reasons for the decision.Wolff, 418 U.S. at 564, 559, 566, 580, and 563.
Judicial review of the written findings required by due process is limited to determining whether the disposition is supported by “some evidence.” Superintendent v. Hill, 472 U.S. 445, 455 (1985). This standard “is extremely tolerant and is satisfied if there is any evidence in the record that supports the disciplinary ruling.” Rodriguez, 498 Fed.Appx. at 72 (citing Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004)); Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004) (construing “some evidence” as “reliable evidence” of inmate's guilt).
It is well-settled that to the extent internal prison regulations grant protections beyond the constitutional minimum, noncompliance with those regulations does not typically offend due process. See, e.g., Rodriguez, 498 Fed.Appx. at 71 (rejecting argument that failure to comply with BOP regulation violated petitioner's rights); Agosto v. Hufford, No. 13-CV-4082 (VEC) (SN), 2014 WL 2217908, at *3 (S.D.N.Y. May 8, 2014), adopted by 2014 WL 2217925 (May 29, 2014). “[A] mere violation of the BOP Program Statement, if not also a violation of Wolff, cannot amount to a due-process violation.” Bullock v. Reckenwald, No. 15-CV-5255 (LTS) (DF), 2016 WL 5793974, at *12 (S.D.N.Y. Aug. 24, 2016) (citing Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (“A habeas claim cannot be sustained based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP Program statement is not a violation of federal law.”)), adopted by 2016 WL 5719786 (Sept. 30, 2016); Berkun v. Terrell, No. 11-CV3237 (ILG), 2011 WL 4753459, at *3 (E.D.N.Y. Oct. 7, 2011) (“[Petitioner] provides no authority, and the Court has found none, that stands for the proposition that BOP failure to meet regulatory deadlines, without more, renders a prison disciplinary proceeding inconsistent with due process.”).
BOP regulations govern the disciplinary process. See 28 C.F.R. § 541.1 et seq. A prisoner “will ordinarily receive [an] incident report [describing the incident] within 24 hours of staff becoming aware of [his] involvement in the incident.” 28 C.F.R. § 541.5. After an incident report is issued, prison officials investigate and, if they decide to charge the prisoner with misconduct, inform the prisoner of the charges and his rights in the disciplinary process. Id. After the investigation, the UDC reviews the incident report and either issues a disposition, after giving the prisoner the opportunity to present a defense, or, for more serious misconduct charges, must refer the case to the DHO. Id. § 541.7(a), (d). The regulations afford prisoners the rights to receive written notice of the charges at least 24 hours before the DHO hearing; to present witnesses and documentary evidence at the hearing; and to receive a written disposition after the DHO hearing. Id. § 541.8.
D. Claimed Violations of Due Process
Wentzel had a liberty interest that entitled him to constitutional due process at his disciplinary hearing because he faced the loss of earned good conduct time. The Court thus considers whether any of the grounds for relief that Wentzel raises demonstrate that he was deprived of the minimal process guaranteed by the Constitution, as outlined in Wolff.
1. Advance written notice of charges
Wentzel makes no argument that he had inadequate written notice of the charges against him. It is undisputed that the DHO hearing was held on December 10, 2020, and that more than two weeks earlier, on November 23, 2020, Wentzel had received a written disciplinary incident report charging him with “Fighting with Another Person,” in violation of Section 201 of the Prohibited Act Code. Dkt. No. 1 at 13. To satisfy due process concerns, a disciplinary notice, in addition to being timely, must “permit a ‘reasonable person' to ‘understand what conduct is at issue so that he may identify relevant evidence and present a defense.'” Elder v. McCarthy, 967 F.3d 113, 128 (2d Cir. 2020) (quoting Sira, 380 F.3d at 72). Wentzel does not suggest that the contents of the incident report were insufficient to allow him to prepare a defense. Wentzel thus plainly had constitutionally sufficient notice of the charges against him.
2. Hearing allowing for witnesses and evidence
Wentzel has not argued that he was prevented from calling witnesses at the DHO hearing. The DHO hearing report indicated that Wentzel waived his right to call witnesses. Dkt. No. 1 at 31. Although Wentzel now requests that the Court consider testimony from other prisoners, such as Marlnee's declaration, Dkt. No. 2, he does not dispute that he waived his right to call witnesses or that, at the DHO hearing, he indicated his wish to call any witnesses.
Wentzel does argue that his right to present evidence was impaired. He asserts that he was not allowed to read his five-page statement aloud at the DHO hearing, which he notes would have taken only about 9 % minutes. Dkt. No. 25 at 12. Instead, the DHO received the written statement by email. Wentzel further argues that the DHO's decision did not refer to his statement.
In his opposition to the petition, Respondent contends that Wentzel's written statement is merely argument, not evidence. Dkt. No. 18 at 13. The DHO report included a summary of Wentzel's oral statement at the hearing, which shows that it was roughly similar to the arguments in his written statement. The DHO report summary noted that Wentzel argued at the hearing that no voices were raised; that an argument must be “hostile” to qualify as a fight; that he pushed his bowl toward Lyles to show him that it was empty; that the “food tray” was only a clamshell; and that only Lyles needed to be restrained. The substance of Wentzel's written statement is similar.
The DHO report stated that Wentzel “had no documentary evidence to present.” (Dkt. No. 1 at 32.).
In his written statement, Wentzel argued that there was no “verbal altercation” because both parties were speaking calmly; that the food tray referenced in the incident report was actually an empty, Styrofoam clamshell; that he merely slid the Styrofoam clamshell across the table and did not (and could not have) pushed it into Lyles's chest while remaining seated; that only Lyles had to be restrained; and that he was assaulted without warning, did not fight back, and was the only one injured. Dkt. No. 1 at 37-41.
Respondent also argues that the DHO weighed Wentzel's arguments but concluded that the greater weight of evidence was to the contrary. Id. It is undisputed that the DHO accepted Wentzel's written statement during the hearing. The DHO also explicitly stated in the report that he considered, but rejected, Wentzel's defense “that the argument was not hostile and therefore not a fight,” which was made in both his written and oral statements. Dkt. No. 19-2 at 3.
Accordingly, the record demonstrates that Wentzel had a reasonable opportunity to present relevant evidence. See, e.g., Wolff, 418 U.S. at 566 (“an individual threatened with serious sanctions would normally be entitled to present . . . relevant documentary evidence” but “the needs of the prison” require “flexibility and accommodation” and “[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits”). Although Wentzel was required to submit his written statement rather than given permission to read it, there is nothing in the record to establish that his opportunity to present relevant evidence was constitutionally insufficient.
Insofar as Wentzel also argues as his first ground for relief that the failure to allow him to read his written statement at the UDC hearing violated BOP regulations, e.g., 28 C.F.R. § 541.7(e), he also does not establish a violation of his rights. First, because of the nature of the charges against him, the UDC was required to refer the matter to a DHO hearing automatically rather than render a disposition on the charges, regardless of the evidence submitted. 28 C.F.R. § 541.7(a)(4). Moreover, the asserted violation of a BOP regulation was not also a violation of his right to due process. See, e.g., Bullock, 2016 WL 5793974, at *12 (“[A] mere violation of the BOP Program Statement, if not also a violation of Wolff, cannot amount to a due process violation.”). For the same reason, Wentzel's claim that it violated BOP Program Statement 5270.09 to deprive him of the opportunity to read aloud his written statement at the DHO hearing (ground two) is not cognizable.
3. Assistance from a Staff Representative
Respondent argues that Wentzel “is not illiterate or otherwise unable to grasp the complexities of marshaling a defense” and thus it “is not clear” that he was constitutionally entitled to have a staff representative assist him to understand the charges and prepare a defense. Dkt. No. 18 at 15. As Wentzel correctly notes, however, he was confined in the SHU during the relevant period, and such confinement also provides a basis for assigning a representative. Dkt. No. 25 at 12; see, e.g., Eng v. Coughlin, 858 F.2d 889, 897-98 (2d Cir. 1988) (“When the inmate is disabled, either by being confined full-time to SHU or transferred from the prison in which the incidents occurred, the duty of assistance is greater because the inmate's ability to help himself is reduced.”) (citations omitted).
Wentzel specifically asked to have Chaplain Davis as his staff representative. Davis acted essentially as a character witness: he testified at the DHO hearing about Wentzel's involvement in religious services but stated that he could not opine on the incident itself. Dkt. No. 1 at 32. Wentzel argues in his reply papers that Davis could “have done the things on the form he signed,” referring to the form describing the role of a representative, such as “seek out witnesses or evidence favorable to [Wentzel's] defense.” Dkt. No. 25 at 13. The Second Circuit has held that “the assistant has no duty, however, ‘to go beyond the specific instructions of the inmate.'” Elder, 967 F.3d at 126 (quoting Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993)). If such an independent obligation were imposed on a representative, “he would then be acting as counsel in a prison disciplinary proceeding, assistance to which a prisoner is not entitled.” Id. at 126-27 (citing Silva, 992 F.2d at 22).
Here, Wentzel explicitly waived his right to call witnesses, and he does not allege that he ever asked Davis to interview witnesses or obtain any particular evidence. Davis did not have a general obligation to “seek out witnesses or evidence favorable to” Wentzel, as Wentzel now urges, absent specific instructions from him identifying the potentially relevant witnesses or requesting evidence.
Wentzel contends in his reply papers that he could not do so because Davis only met with him about the incident just before the hearing. Dkt. No. 25 at 13. At their meeting, however, according to Wentzel, his only request was that Davis turn the pages for him when he read his written statement. Dkt. No. 1 at 14. Wentzel does not identify anything further that he asked Davis to do at that meeting.
Chaplain Davis declined Wentzel's request on the ground that the statement was too long to read aloud and instead had it scanned and emailed to the DHO. Having already concluded, supra at 14, that Wentzel was not prejudiced by submitting his statement to the DHO in writing, rather than reading it, the Court finds that Chaplain Davis's role in that regard is not a violation of Wentzel's rights.
Wentzel also did not raise with the DHO at the hearing that there were witnesses or evidence that he had wanted Davis to obtain, and he did not seek to adjourn or extend the close of the hearing to have an opportunity to do so. See, e.g., Bedoya v. Coughlin, 91 F.3d 349 (2d Cir. 1996) (prisoner waived right to call witness at disciplinary hearing by failing either to reiterate request for witness' testimony when given opportunity to do so, or to object to close of hearing without having heard from witnesses); cf. Giano, 709 F.Supp. at 1214-16 (prisoner established due process violation where assistant did not obtain specifically requested materials or appear at hearing, and DHO rejected prisoner's arguments that he was not prepared to proceed because he wished to present relevant evidence that he had asked assistant to obtain). Nor did Wentzel argue in his administrative appeals that he had wanted his representative to obtain any particular evidence or witnesses; instead, on appeal, he raised only the representative's handling of his written statement. Dkt. No. 1 at 36 (“[H]e helped me prepare nothing and took what I did prepare and refused to let me use it.”).
Wentzel argues in his reply papers that he could not have asked his assistant to obtain the video evidence or SIS investigative report prior to the hearing because they met only a short time before the hearing. Dkt. No. 25 at 13. As noted above, however, he does not suggest that he discussed the obtaining of evidence with Chaplain Davis when they did meet, that he raised his desire for additional evidence at the DHO hearing or sought an adjournment, or that he raised this deprivation in his administrative proceedings. On this record, Wentzel has failed to establish that he received constitutionally deficient assistance because he did not receive specifically requested materials.
Moreover, the facts about what happened during the incident are largely undisputed, and the factual disputes Wentzel identifies are generally not material (such as whether the two inmates raised their voices). Wentzel's submissions do not suggest how it would have changed the DHO decision if he had requested and obtained the video or other evidence prior to the hearing.
District courts have reached different conclusions about whether an assistant's performance is subject to a harmless error analysis. Compare Homen v. Hasty, 229 F.Supp.2d 290, 297 n.6 (S.D.N.Y. 2002) (even if assigned assistant “had refrained from providing the DHO with inculpatory information, the Court finds on the record before it that it is extremely likely that the DHO would have reached the same conclusion”), with Giano, 709 F.Supp. at 1216-18 (harmless error analysis inappropriate where petitioner denied right to marshal evidence due to assistant's failure to obtain it; requiring petitioner to establish how evidence was relevant to defense would “circularly hold[ ] petitioner responsible for the very consequences of his due process deprivation”). Because the record does not show that Wentzel was denied assistance to which he was entitled, the Court does not further address that question.
4. Impartial hearing officer
Wentzel makes two arguments about the partiality of the hearing officers. First, he argues in his reply papers that UDC Counselor Melendez “showed favoritism” to Lyles, the inmate with whom Wentzel was found guilty of fighting. Dkt. No. 25 at 6-7. The UDC hearing resulted in automatic referral for a DHO hearing, as required by federal regulation, based on the nature of the charges. 28 C.F.R. § 541.7(a)(4). This argument is therefore unavailing because no findings were made at the UDC hearing, and Wentzel does not show how any favoritism on Melendez's part affected the DHO decision.
Second, Wentzel argues generally that the DHO's “mind was made up prior to the start of the hearing,” based on the fact that Wentzel “received the exact same sanctions that inmate Lyles dId.” Dkt. No. 25 at 11. It is well-established that “[a]n inmate subject to a disciplinary hearing is entitled to an impartial hearing officer.” Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996); see Wolff, 418 U.S. at 570-71; Russell v. Selsky, 35 F.3d 55, 59 (2d Cir. 1994). An impartial hearing officer is one who, among other things, “does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen.” Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990); see, e.g., Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) (“[I]t would be improper for prison officials to decide the disposition of a case before it was heard.”).
However, the DHO report belies Wentzel's assertion that the DHO prejudged the matter without hearing his defense. The report specifically indicated that the hearing officer considered Wentzel's arguments made at the hearing. Dkt. No. 1 at 32 (“You appeared before the DHO and elected to make the following statement .... The DHO also considered the statement of your staff representative .... The DHO considered your defense that the argument was not hostile . . .”). The record thus does not demonstrate that Wentzel was denied the right to an impartial hearing officer at the DHO hearing.
5. Written disposition based on some reliable evidence
The due process requirement that a disciplinary decision be based on some evidence does not “imply that a disciplinary board's factual findings or decisions with respect to appropriate punishment are subject to second-guessing upon review.” Hill, 472 U.S. at 455. Judicial review also “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.” Id. at 455-56 (citations omitted) (emphasis added).
Here, the hearing officer had evidence that the two inmates had a fight on November 16, 2020, when Wentzel wanted to remain seated until he finished his breakfast, and Lyles wanted him to move so that he could mop the floor.
Wentzel argues that all the evidence from the SIS investigation is unreliable and must be disregarded. According to Wentzel, the statement in the report that SIS investigator Clemens spoke to Wentzel at 12:15 p.m. on the date of the incident is an “intentionally falsified . . . federal investigative document” because no “interview” ever occurred. Dkt. No. 25 at 5. Instead, it appears from statements in Wentzel's administrative appeal that SIS investigators incidentally spoke to Wentzel in passing on that date, when they were in the SHU on another matter.
Whether or not Wentzel's interaction with SIS on that date can be characterized as an “interview,” the statements attributed to Wentzel in the SIS investigative report are entirely consistent with his arguments at the hearing and now in the petition. Inclusion of this information in the SIS report does not mean that none of the evidence from the SIS investigation can be considered reliable. Moreover, the DHO decision is also based on other evidence, such as review of the video (or a written summary of the video) and the reporting officer's statement.
Finally, Wentzel argues that it was error for him to receive the same punishment as Lyles, given that Lyles was the one who slapped him and that Lyles had an extensive disciplinary history, while Wentzel had an unblemished disciplinary record. But the loss of 27 days of good time credits was within the range of penalties available for this offense. The Court declines to second guess the determination with respect to appropriate punishment. See Hill, 472 U.S. at 455.
In sum, Wentzel was accorded the procedural requirements identified in Wolff and the disciplinary decision was based on some reliable evidence. Accordingly, Wentzel has not demonstrated that he was deprived of due process.
III. CONCLUSION
For the foregoing reasons, I recommend that the petition for a writ of habeas corpus be denied.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007.
Any requests for an extension of time for filing objections must be directed to Judge Torres. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). If Wentzel does not have access to cases cited herein that are reported on Westlaw, he should request copies from counsel for Respondent. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.