Barr v. Warden, FCC Coleman - Low

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

JAMES MICHAEL BARR,

Petitioner,

v. CASE NO.: 5:21-cv-370-JLB-PRL

WARDEN, FCC COLEMAN - LOW,

Respondent.

_______________________________/

OPINION AND ORDER

Pending before the Court is Petitioner James Michael Barr’s Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2241, filed July 14, 2021. (Doc. 1.)

Petitioner, an inmate at FCC Coleman Low, raises four grounds for relief, all

related to a disciplinary report and subsequent disciplinary hearing. In its

response, Respondent asks the Court to dismiss the Petition for failure to exhaust

administrative remedies or, alternatively, deny the Petition because Petitioner

received the due process required during his disciplinary proceedings. (Doc. 5.)

Petitioner filed a reply. (Doc. 8.) For the reasons explained, the Petition is denied

in part and dismissed in part.

I. Background

Petitioner was issued a disciplinary incident report for possession of any

narcotic, in violation of Bureau of Prisons (“BOP”) code 113. (Doc. 5-1 at 7–15.)

See also 28 C.F.R. § 541.3. On December 4, 2020, at approximately 7:00 p.m., an

officer conducted a search of a locker belonging to Petitioner. (Doc 5-1 at 7.)

Inside, the officer “discovered a homemade tissue box with a plastic bag of white

powder hidden under the tissue.” (Id.) The officer identified the locker using

personal papers containing Petitioner’s name and register number. (Id.) The

officer “took the plastic bag of white powder to the Lieutenant’s office to be tested.”

(Id.) The officer tested the substance with narcotics identification kit (“NIK”) tests,

which identified the substance as amphetamines. (Id.) Petitioner was provided a

copy of the incident report on January 7, 2021, at 4:51 p.m.1 (Id.) A BOP

lieutenant subsequently investigated the charge and interviewed Petitioner as part

of the investigation. (Id. at 9.) Petitioner “did not make a comment”. (Id.) The

investigator then referred the matter to the Unit Discipline Committee (“UDC”) for

further action. (Id.)

The UDC conducted an informal hearing on January 8, 2021, where

Petitioner again declined to make any comments. (Id. at 8.) Due to the severity of

the charges, the UDC determined that the matter should be referred to the

Discipline Hearing Officer (“DHO”) for a formal hearing. (Id.) That same day, on

January 8, 2021, Petitioner was provided with both a Notice of Discipline Hearing

and a BOP form AO-293, titled, “Inmate Rights at Disciplinary Hearing,” which

advised of his rights throughout the disciplinary process. (Id. at 17, 19.) The

Notice of Discipline Hearing advised Petitioner of his rights throughout the

disciplinary process, including, among other things, his opportunity to request a

1 Delivery of the incident report was delayed due to it being suspended

pending referral to the Federal Bureau of Investigation (“FBI”). (Doc. 5-1 at 9.)

staff representative to assist him with the hearing and to call witnesses to testify on

his behalf. He declined both. (Id. at 19.)

At a hearing before the DHO on January 14, 2021, Petitioner denied the

charge. (Id. at 21.) At the commencement of the hearing, the DHO again advised

Petitioner of his due process rights and Petitioner conveyed that he neither wanted

a staff representative to appear with him nor to call any witnesses on his behalf.

(Id. at 22.) Specifically, the DHO Report states as follows:

Your due process rights were reviewed with you by the

DHO at the time of the hearing. You stated you

understood your rights and had no documentary evidence

to present. You did not request any witnesses or the

services of a staff representative to assist you at the

hearing. You indicated to the DHO you were ready to

proceed with the hearing.

(Id.)

The DHO found the greater weight of the evidence supported the finding that

Petitioner committed the prohibited act of possession of any narcotic, in violation of

Code 113. (Id. at 22–23.) As a result, the DHO sanctioned Petitioner with 90 days

loss of telephone privileges and 27 days of lost good conduct time. (Id. at 23.)

Petitioner was provided a copy of the DHO report on January 21, 2021. (Id.)

Petitioner asserts four grounds for relief. First, he claims that his placement

in special housing pending the investigation and disciplinary proceedings was

invalid because the records did not reflect a pending BOP or FBI investigation.

(Doc. 1 at 6.) Second, he contends the DHO was not impartial because the DHO

“quoted a contrived written officer statement, misquoted the Petitioner’s statement,

[and the DHO’s] statement shows he arrived at decision without evidence to base it

on.” (Id.) Third, he contends that there was a lack of evidence to support his

adjudication of guilt, challenging the photo of the bag of powder and the chain of

custody. (Id.) Lastly, he contends his due process rights were violated when he

was sent to the Special Housing Unit without a hearing or disclosure of the reason

he was removed from the general population. (Id. at 7.)

Respondent first contends that the Petition should be dismissed because

Petitioner did not exhaust his administrative remedies. (Doc. 5 at 4.) Respondent

further contends that Petitioner received all due process required during the

disciplinary process and proceedings. (Id. at 7.) Respondent also asserts that

Petitioner’s claims regarding the conditions of his confinement—being placed in the

Special Housing Unit—are not appropriately brought in a habeas proceeding. (Id.

at 10–11.)

Petitioner’s projected release date is October 12, 2024. See Federal Bureau

of Prisons, Find an Inmate, https://www.bop.gov/inmateloc/ (last visited Apr. 5,

2024).

II. Analysis

1. Exhaustion of Administrative Remedies

Respondent first asserts that the Petition should be dismissed because

Petitioner has failed to exhaust his administrative remedies. Although exhaustion

of administrative remedies is not a jurisdictional requirement in a section 2241

proceeding, “that does not mean that courts may disregard a failure to exhaust and

grant relief on the merits if the respondent properly asserts the defense.”

Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015). A court, however,

“may skip over the exhaustion issue if it is easier to deny . . . the petition on the

merits without reaching the exhaustion question.” Id. The Court has determined

that skipping to the petitioner’s merits without reaching the exhaustion

requirements is appropriate here. See id.

2. Claims Regarding Placement in the Special Housing Unit

Among the grounds for relief he raises, Petitioner challenges his placement in

the Special Housing Unit without a hearing or explanation. However, Petitioner

was placed in the Special Housing Unit in Administrative Detention pending the

outcome of his disciplinary action. (Doc. 1 at 23.) He was not sentenced to

disciplinary segregation due to his disciplinary proceedings. (See Doc. 5-1 at 23.)

The Supreme Court has recognized that “[a]fter a district court sentences a federal

offender, the Attorney General, through the BOP, has the responsibility for

administering the sentence.” United States v. Wilson, 503 U.S. 329, 335 (1992).

See also Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir. 1979) (noting that “the sole

function of habeas corpus is to provide relief from unlawful imprisonment or

custody, and it cannot be used for any other purpose”). Thus, to the extent

Petitioner challenges his placement in the Special Housing Unit, the Court finds

that the claims are not cognizable in a section 2241 proceeding and must be

dismissed.

3. Disciplinary Proceedings

Prison disciplinary proceedings are not part of a criminal prosecution. Thus,

the full panoply of rights due to a defendant in a criminal proceeding does not

apply. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, inmates are

entitled to some due process protections. Id. Those protections include: (1)

written notice of the charges at least 24 hours before a hearing to enable the inmate

to prepare a defense; (2) an opportunity to call witnesses and present documentary

evidence if doing so is not an undue hazard to institutional safety; and (3) a written

explanation of the evidence relied on and reasons for disciplinary actions. Id. at

564–66. But an inmate does not have a right to confront or cross-examine

witnesses, or a right to counsel. Id. at 567, 570. Further, disciplinary decisions

comport with the requirements of procedural due process when there is “some

evidence” to support the disciplinary decision by the fact finder. Superintendent,

Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). Here, Petitioner was provided

written notice of the charge and the hearing on January 7, 2021, was provided a

detailed enumeration of his various rights throughout the disciplinary proceedings

on January 8, 2021, was given the opportunity to call witnesses and present

evidence at the January 14, 2021 hearing, and was provided with a written finding

of facts explaining the basis for the DHO’s determination on January 21, 2021.

(Doc. 5-1 at 7–15, 17, 19, 21–23.)

Based on the preceding, the Court finds that Petitioner was afforded a fair

hearing and received the appropriate due process protections.2 To the extent

2 Insofar as Petitioner claims in his reply that he was not included in the

UDC hearing and the BOP violated its program statement (Doc. 8 at 1), arguments

raised for the first time in a reply brief will not be addressed. Herring v. Sec’y,

Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir.2005) (citations omitted).

Petitioner disputes certain aspects of the hearing report, the record belies such

claims and are without merit. Petitioner states that he informed the DHO that “he

disputes the test results, that the bag contained cleanser, that the bag never left his

sole possession, and that neither the bag nor the cleanser could have been

contaminated by drugs.” (Doc. 1 at 10.) Petitioner contends that the hearing

report “failed to note [his] disputes.” (Id.) However, section III.B of the report

provides for a summary of the inmate’s statement. (Doc. 5-1 at 21.) Here, the

DHO wrote that Petitioner stated, “I am not guilty.” (Id.) Such a summary is

consistent with Petitioner’s contention that he disputed the test results and

maintained that the bag did not contain drugs, suggesting that he was not guilty of

the prohibited act of possession of narcotics.

And to the extent Petitioner disputes that the DHO reviewed his due process

rights at the hearing, even if true, this does not mean Petitioner was denied due

process. Petitioner was informed of his rights prior to the hearing, specifically

waiving his rights to a staff representative or to call witnesses. (Doc. 5-1 at 19.)

Indeed, Petitioner signed a form waiving his right to a staff representative and to

call witnesses. (Id.) Petitioner does not suggest that he intended to call witnesses

or would have requested the assistance of a staff member.

In addition to Petitioner receiving due process as required by Wolff, the DHO

report clearly contains sufficient evidence to support the decision. (Doc. 5-1 at 21–

23.) Determining whether there is “some evidence” in the record to support a

disciplinary charge does not “require examination of the entire record, independent

assessment of the credibility of witnesses, or weighing of the evidence,” but merely

assessment of whether there is “any evidence in the record that could support the

conclusion reached by the disciplinary board.” O’Bryant v. Finch, 637 F.3d 1207,

1213 (11th Cir. 2011) (quoting Hill, 472 U.S. at 454–56).

The DHO based the decision on the staff member’s account of the incident as

presented in the body of the incident report. (Doc. 5-1 at 22–23.) Even if

Petitioner had called a witness or challenged the use of the NIK test, the DHO’s

decision is still supported by the evidence that an officer found narcotics in a secure

locker containing personal papers of Petitioner. As such, the Court finds that there

is “some evidence” to support the DHO’s conclusion. See Barrie v. Warden, FCC

Coleman, 840 F. App’x 508, 509 (11th Cir. 2021) (finding that district court was not

required to assess the reliability of NIK tests because it did not need to reweigh the

evidence). Petitioner is not entitled to a retrial of the facts underlying his

disciplinary sanctions, or to a de novo review of the DHO’s factual findings. “‘The

federal courts cannot assume the task of retrying all prison disciplinary disputes.’”

See Young v. Jones, 37 F.3d 1457, 1460 (11th Cir. 1994) (quoting Smith v. Rabalais,

659 F.2d 539, 545 (5th Cir. 1981)).3

3 The Court has carefully reviewed the record and determines that no

evidentiary proceedings are warranted to resolve this petition. Schriro v.

Landrigan, 550 U.S. 465 (2007). Petitioner does not proffer any evidence that

would necessitate an evidentiary hearing, Chandler v. McDonough, 471 F.3d 1360,

1362–63 (11th Cir. 2006), and the Court finds that the pertinent facts of the case

are fully developed in the record before the Court. Schriro, 550 U.S. at 474.

III. Conclusion

Petitioner’s claims regarding his placement in the special housing unit are

dismissed. Petitioner received the process due to him in his disciplinary

proceedings, and the decision of the DHO is supported by the requisite evidence.

Based on the foregoing, it is now

ORDERED:

1. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is DENIED in

part and DISMISSED in part.

2. The Clerk is DIRECTED to enter judgment, deny any pending

motions as moot, terminate any deadlines, and close this file.

DONE and ORDERED in Fort Myers, Florida on April 24, 2024.

SOA Cable

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record