Alcorn v. Daniels

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JASON ALCORN, # 13530-045, )

)

Petitioner, )

)

vs. ) Case No. 16-cv-418-SMY

)

CHARLIE DANIELS, )

Warden, Terre Haute, )

)

Respondent. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Federal prisoner Jason Alcorn filed a Petition for Writ of Habeas Corpus under 28 U.S.C.

§ 2241 to challenge the imposition of disciplinary sanctions against him; specifically the loss of

41 days of good conduct credit against his sentence. (Doc. 1). Respondent filed a Response to the

Petition (Doc. 10), and Alcorn replied (Doc. 12). For the following reasons, the Petition will be

denied.

Relevant Facts and Procedural History

Alcorn was convicted in the United States District Court for the District of Kansas of using

or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924

and 1201. (Doc. 10, p. 1; Doc. 10-2, p. 2). On April 15, 2002, he was sentenced to 360-months

and is currently incarcerated at the FCI-Greenville. As of the date of the Respondent’s Response,

Alcorn’s projected release date was calculated to be December 19, 2026. (Doc. 10, p. 1; Doc. 10-

2, pp. 1-2). His sentence is set to fully expire on August 31, 2030. (Doc. 10, p. 1; Doc. 10-2, p.

4). The disciplinary incident that gave rise to this action occurred while Alcorn was incarcerated

at the FCI-Terre Haute, Indiana. Therefore, Alcorn named the warden of that institution as the

Respondent herein.1

On the morning of November 26, 2014, Officer J. Horn searched the common area of cell

block C-1 and found a pair of shoes in which a hypodermic needle was concealed. (Doc. 1, pp. 3,

21; Doc. 10, pp. 3-4). The area was under video surveillance, which showed that Alcorn had

carried the shoes into the room and set them down by a table. Horn prepared an incident report

charging Alcorn with possession of drug paraphernalia (a Code 113 violation). Id. The report was

allegedly delivered to Alcorn by Lt. C. Wingerd at 8:00pm on the same day. (Doc. 10, p. 3; Doc.

10-3, pp. 1-2). However, Alcorn disputes that the incident report was given to him at that time

and claims he did not receive it until his Unit Disciplinary Committee (“UDC”) hearing on

December 3, 2014, 7 days after the incident. (Doc. 1, pp. 5, 15; Doc. 10, p. 3; Doc. 12, pp. 1-2).

Alcorn requested a staff representative (C.O. Reberger) to assist him at the next stage of

the disciplinary proceedings – the hearing before a Disciplinary Hearing Officer (“DHO”). (Doc.

1, pp. 6, 11; Doc. 10, p. 3). Alcorn requested that Reberger have the surveillance video saved so

it could be reviewed, but it had already been destroyed. (Doc. 1, p. 6; Doc. 10, p. 6; Doc. 12, p.

2). Alcorn also claims he gave Reberger a list of witnesses and questions for each in preparation

for his DHO hearing, but Respondent disputes that Alcorn requested any witnesses. (Doc. 1, pp.

7, 19; Doc. 10, p. 3; Doc. 12, pp. 3, 6). The DHO hearing was held on April 29, 2015. Alcorn

was found guilty and sanctioned with the loss of 41 days of good conduct time and 90 days of

restrictions on visitors and MP3 player use. (Doc. 1, p. 8; Doc. 10, pp. 3-4; Doc. 10-4).2

1 The proper respondent in a habeas corpus action is the warden of the institution where the petitioner is

confined; but Respondent has not objected to having been named in this action. See Bridges v. Chambers,

425 F.3d 1048, 1049-50 (7th Cir. 2005) (proper habeas respondent is the prisoner’s current custodian). In

light of the disposition of this case, the Court does not find it necessary to substitute Alcorn’s current

custodian as Respondent.

2 Respondent outlines some irregularities in Alcorn’s efforts to exhaust his administrative remedies but does not claim

that Alcorn failed to exhaust before filing this action. (Doc. 10, pp. 4-5).

Grounds for Habeas Relief

Alcorn alleges that while the video showed him bringing the shoes into the common area

and setting them down by a table, the needle was not discovered inside the shoes until hours later.

(Doc. 1, pp. 3-4). In the meantime, many other inmates had access to the shoes and could have

hidden the needle inside them. He claims that if the entire video had been reviewed, it would have

showed another person placing the item in the shoes. Id. Alcorn also challenges Wingerd’s

documentation of giving Alcorn the incident report on November 26, 2014, based on Wingerd’s

later admission that Alcorn may have been asleep at the time and he may have filled out the report

without speaking to Alcorn. (Doc. 1, pp. 5, 11, 22; Doc. 12, pp. 2, 5).

Finally, Alcorn makes the following allegations relative to the final hearing: the DHO

interrupted his explanation of his inability to promptly request the video evidence and the rules on

preservation of evidence, to say that Alcorn was going to be found guilty. (Doc. 1, pp. 7, 12).

When Alcorn protested that he had not been able to call his witnesses, the DHO threatened him

with a monetary sanction if he insisted on calling them. Reberger then told Alcorn to “just go

before it gets worse,” which Alcorn did in order to avoid another violation for disobeying an order.

(Doc. 1, pp. 8, 12). The DHO report stated incorrectly that Alcorn did not request witnesses. (Doc.

1, pp. 12-13; Doc. 12, pp. 3, 6).

Based on the above allegations, Alcorn asserts that he was denied due process on the following

bases:

(1) He was placed in the Special Housing Unit (“SHU”) on November 26, 2014, without being

given an incident report or a detention order which would have informed him of the charge

against him, and was thus denied the opportunity to have the video evidence saved;

(2) His belated receipt of the incident report at the UDC hearing came too late for him to

request preservation of the video evidence;

(3) The DHO denied his request to access the video evidence based on untimeliness (which

was caused by the lack of prompt notice of the charge);

(4) The DHO denied his request to call witnesses even though he made a timely request; and

(5) The DHO ignored the relevant facts and controlling law.

Applicable Law

Inmates in the custody of the Bureau of Prisons can challenge the loss of good conduct

credit through a petition for habeas relief pursuant to 28 U.S.C. § 2241. Jackson v. Carlson, 707

F.2d 943, 946 (7th Cir. 1983).

Inmates retain due process rights in connection with prison disciplinary proceedings, but

such 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).

The minimum requirements of due process in such proceedings are (1) receipt of written notice of

the charges in advance of the hearing, (2) an opportunity to be heard before an impartial decision

maker, (3) the right to call witnesses and present evidence where the same will not be unduly

hazardous to safety or correctional goals, and (4) a written statement as to the evidence relied on

and the reason for the decision. Wolff, 418 U.S. at 564-66; Henderson v. U.S. Parole Commission,

13 F.3d 1073, 1077 (7th Cir. 1994).

The findings of the disciplinary hearing officer must be supported by “some evidence in

the record.” Superintendent v. Hill, 472 U.S. 445 (1985); see also Black v. Lane, 22 F.3d 1395,

1402 (7th Cir. 1994). The “some evidence” standard is a low bar, which the Seventh Circuit has

described as a “meager threshold.” Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007) (“once

the meager threshold has been crossed our inquiry ends”). The Court does not reweigh the

evidence or determine credibility. Meeks v. McBride, 81 F.3d 717, 720 (7th Cir. 1996). Nor does

the Court “assess the comparative weight of the evidence underlying the disciplinary board's

decision.” Webb v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000). Instead, the “relevant question

is whether there is any evidence in the record that could support the conclusion reached by the

disciplinary board.” Id. (quoting Hill, 472 U.S. at 455-56 (emphasis in original). The evidence

need not be sufficient to logically exclude any result except the one reached by the prison decision

maker. Viens v. Daniels, 871 F. 2d 1328, 1334-35 (7th Cir. 1989); see also Hill, 472 U.S. at 457.

As such, this Court can overturn the decision “only if no reasonable adjudicator could have found

[petitioner] guilty of the offense on the basis of the evidence presented.” Henderson, 13 F.3d at

1077. Only evidence that was presented to the hearing officer is relevant to the determination of

whether there was “some evidence.” Hamilton v. O'Leary, 976 F.2d 341, 346 (7th Cir. 1992).

Analysis

Alcorn has not established that he was denied due process in connection with the

disciplinary proceedings. Wolff instructs that an inmate must be given written notice of a violation

at least 24 hours before a disciplinary hearing. The purpose of the notice requirement is to permit

“the accused to gather the relevant facts and prepare a defense.” Northern v. Hanks, 326 F.3d 909,

910 (7th Cir. 2003). Alcorn asserts this requirement was violated because despite Wingerd’s

written documentation to the contrary, Wingerd never gave him a copy of the incident report on

November 26, 2014; he received the report 7 days later, at the end of his UDC hearing on

December 3, 2014. While the delivery of the report satisfied Wolff as to the DHO hearing which

was held on April 29, 2015, Alcorn claims he was prejudiced by the late notice of the disciplinary

charge because by the time he received it and requested staff assistance to obtain the surveillance

videotape, that evidence had already been destroyed.

Bureau of Prisons regulations provide for two preliminary steps before an inmate faces the

DHO hearing at which he may lose good-conduct credits if he is found guilty of a disciplinary

infraction. When an incident report is issued, a staff member will investigate the incident and

inform the inmate of the charges and of his rights to explain the incident and request evidence and

witnesses. 28 C.F.R. § 541.5. The incident report is “ordinarily” delivered to the inmate within

24 hours. Id. If the incident is not informally resolved at the investigation stage, the report is then

reviewed by the UDC. 28 C.F.R. § 541.7. The inmate may make a statement and present

documentary evidence to the UDC during its review. 28 C.F.R. § 541.7(d) and (e). The UDC is

empowered to impose certain sanctions if it finds the inmate guilty, but the UDC may not revoke

good conduct credit. § 541.7(f); see also 28 C.F.R. §541.3 (listing prohibited acts and available

sanctions). Serious infractions that may result in loss of sentence credit are referred to the DHO

for further review. § 541.7(a), (g). The inmate must receive the UDC’s written report of its

decision, which includes notice of the inmate’s rights to request a staff representative, witnesses,

and obtain and present documentary evidence at the DHO hearing. See 28 C.F.R. § 541.8(d), (e),

(f). While these regulations incorporate some of the Wolff requirements, administrative regulations

in and of themselves do not have constitutional force. See Jones v. Cross, 637 F.3d 841, 846-47

(7th Cir. 2011) (federal prison regulations do not give rise to a protected liberty interest); White v.

Henman, 977 F.2d 292, 295 (7th Cir. 1992) (the violation of an administrative rule is not the same

as a violation of the Constitution).

The key issue with respect to Alcorn’s due process claim is whether the constitutional

requirement of 24 hours’ notice prior to the disciplinary hearing applies to the UDC

hearing/review, or only to the DHO hearing. Courts confronting this question have concluded that

the DHO hearing is the relevant benchmark. The Tenth Circuit has held: “Unlike DHO hearings,

the Wolff due process requirements do not apply to UDC hearings[,]” noting that the UDC hearing

is “constitutionally unnecessary.” Brennan v. United States, 646 F. App’x 662, 667 (10th Cir.

2016) (citing Brown v. Rios, 196 F. App’x 681, 683 (10th Cir. 2006) (Wolff advance-notice

requirement applies only to disciplinary hearing, not UDC hearing)). Thus in Brennan, delivery

of the incident report to the inmate “moments before” his UDC hearing did not violate due process.

Id. See also Obiegbu v. Werlinger, 488 F. App’x 585, 586 (3d Cir. 2012) (due process does not

require a UDC hearing; inmate received all the process he was due when he got advance notice of

the DHO hearing, at which he presented his defense; and received written statement with reasons

for DHO decision); Patton v. Hall, No. 18-5235, 2018 WL 7569342, at *1 (6th Cir. Aug. 7, 2018)

(no due process violation where UDC hearing was not held prior to disciplinary hearing). The

Seventh Circuit has characterized the UDC hearing as a “preliminary hearing.” Whitten v. Clark,

78 F.3d 587 (table) (7th Cir. 1996), 1996 WL 89224, at *1. See also Northern v. Hanks, 326 F.3d

909, 910 (7th Cir. 2003) (written notice of the disciplinary charge was not delivered to state inmate

within 24 hours of its issuance, but inmate did receive it at least 24 hours before his disciplinary

hearing, “which is all the Due Process Clause requires”). Applying these precedents, this Court

concludes that Alcorn’s receipt of the incident report at the conclusion of his December 3, 2014

UDC hearing was sufficient to meet the Wolff notice requirement; it was delivered well in advance

of the April 2015 DHO hearing at which Alcorn faced the potential penalty of losing good-conduct

credits.

Having concluded that Alcorn received constitutionally adequate notice of the charge

against him, the Court turns to the matter of whether he was denied his right to present evidence

and witnesses, and whether the disciplinary decision had evidentiary support. Alcorn alleges he

was prejudiced by his inability to present evidence (the entire videotape) to the DHO and by the

DHO’s refusal to allow his witnesses. Such claims are subject to harmless error analysis. See

Jones v. Cross, 637 F.3d 841, 846-47 (7th Cir. 2011) (applying harmless error analysis to due

process claim); Piggie v. Cotton, 344 F.3d 674, 678-80 (7th Cir. 2003) (violation of prisoner’s

right to call witness in disciplinary hearing was harmless; remanded for determination of whether

security reasons justified failure to disclose videotape, whether it was exculpatory, and whether

any error was harmless).

It is unfortunate that the surveillance video was destroyed before Alcorn requested his staff

representative to obtain it.3 That said, whether Alcorn suffered any prejudice as a result of the loss

of the video evidence depends on whether it contained any exculpatory material. Alcorn speculates

that the tape would have shown another person placing the syringe in the shoe, but as he was

admittedly not present in the room, he could not know whether another inmate handled the shoes.

Officer Horn’s incident report documents that he discovered the shoes at approximately 9:20 am.

(Doc. 10-3, p. 1). Horn then reviewed the videotape, which according to his description, showed

Alcorn placing the shoes “on a seat attached to a common area table. [Horn] then continued

reviewing the video [showing] from the time the shoes were placed on the seat and the time [he]

recovered them, and inmate Alcorn was the only individual touching the shoes.” (Doc. 10-3, p.

1). According to Horn’s account, the contents of the video were not exculpatory at all, but instead

implicated Alcorn as the only person in possession of the drug paraphernalia. See Shroyer v.

Cotton, 80 F. App’x 481, 484 (7th Cir. 2003) (no due process violation where inmate was not given

access to videotape which was not exculpatory, and which was viewed and considered by hearing

board).4 Based on these facts, the denial of Alcorn’s access to the videotape amounted to harmless

error, and does not rise to the level of a due process violation that would upend the disciplinary

3 Alcorn does not disclose when he made this request; he says only that he did so after he was released from

the SHU. (Doc. 1, p. 6). It is unknown how long Alcorn remained in the SHU, and thus how much delay

occurred before the video request was made, after Alcorn received the incident report on December 3, 2014.

4 Here, of course, the DHO did not review the videotape itself, as it is undisputed that the tape no longer

existed at the time of the hearing. The DHO review was thus limited to Officer Horn’s account of what the

tape contained.

action.

Alcorn never denied that he placed the shoes in the common room. This together with

Horn’s description of the video’s contents satisfy the requirement that the disciplinary decision be

based on “some evidence.” A prison officer’s written report alone can fulfill the “some evidence”

requirement. McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999). The DHO report relied

on Officer Horn’s description of the shoes and the videotape which showed Alcorn was the only

person who touched them, as well as Alcorn’s failure to address the prohibited act during the

hearing, instead raising the defense that he did not receive proper notice of the charge. (Doc. 1,

pp. 23-24; Doc. 10-6, pp. 20-21). Given the evidence before the DHO, the Court cannot say that

the disciplinary decision was arbitrary or lacking evidentiary support.

Finally, Alcorn has not presented any facts to suggest that the outcome of his hearing would

have been different if he had been permitted to call witnesses. His representative, Reberger, was

able to question Lt. Wingerd about his alleged delivery of the incident report to Alcorn on

November 26, 2014, and Reberger’s summary of Wingerd’s statement was included in the DHO

report. (Doc. 1, p. 22; Doc. 10-6, p. 19). That information tended to substantiate Alcorn’s claim

that he never received the incident report in advance of his UDC hearing. However, Wingerd’s

statement had no bearing on the ultimate issue of whether Alcorn possessed the contraband.

The only other witness Alcorn requested was Officer Horn, who issued the disciplinary

report and whose statement was incorporated into the DHO report (Doc. 1, p. 19; Doc. 10-6, p.

11). Respondent notes that the “reporting staff member” (Horn) cannot be called as a witness

(Doc. 10, p. 7), and Alcorn makes no argument that Horn’s purported testimony would have been

exculpatory. A prisoner does not have the right to call a witness whose testimony would be

irrelevant, repetitive, or unnecessary. See Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003);

Pannell v. McBride, 306 F.3d 499, 502-03 (7th Cir. 2002); Forbes v. Trigg, 976 F.2d 308, 317-18

(7th Cir. 1992).

The other potential witnesses on Alcorn’s list were “unknown persons in Health Services”

and “unknown witnesses present in C-1 Dayroom on Nov. 26, 2014 morning.” (Doc. 1, p. 19;

Doc. 10-6, p. 11). The Petition does not indicate that Alcorn ever identified any of these potential

witnesses by name, thus he cannot complain that he was denied the opportunity to call these

unidentified people at his hearing. As with Alcorn’s other claims of error, the alleged denial of

his right to call witnesses was harmless and did not amount to a due process violation.

Conclusion

For the foregoing reasons, Alcorn’s Petition for habeas relief under 28 U.S.C. § 2241

(Doc. 1) is DENIED. This cause of action is DISMISSED WITH PREJUDICE. The Clerk of

Court shall enter judgment accordingly.

If Petitioner wishes to appeal the dismissal of this action, his notice of appeal must be filed

with this Court within 60 days of the entry of judgment. FED. R. APP. P. 4(a)(1(A). A motion for

leave to appeal in forma pauperis (“IFP”) must set forth the issues Petitioner plans to present on

appeal. See FED. R. APP. P. 24(a)(1)(C). If Petitioner does choose to appeal and is allowed to

proceed IFP, he will be liable for a portion of the $505.00 appellate filing fee (the amount to be

determined based on his prison trust fund account records for the past six months) irrespective of

the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger,

547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien

v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to

Federal Rule of Civil Procedure 59(e) may toll the 60-day appeal deadline. FED. R. APP. P. 4(a)(4).

A Rule 59(e) motion must be filed no more than twenty-eight (28) days after the entry of the

judgment, and this 28-day deadline cannot be extended. Other motions, including a Rule 60

motion for relief from a final judgment, do not toll the deadline for an appeal.

IT IS SO ORDERED.

DATED: September 27, 2019

s/ Staci M. Yandle

STACI M. YANDLE

United States District Judge