The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JASON TOBIAS SMITH, )
#24969-044 )
)
Petitioner, )
)
vs. ) Civil No.18-cv-1158-NJR
)
BILLTRUE, )
)
Respondent. )
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Jason Tobias Smith is a federal inmate in custody of the Bureau of Prisons (“BOP”) at USP–
Marion. He filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging the loss of
27 days of good conduct credit as a sanctionimposed in prison disciplinary proceedings.(Doc. 1).The
Petition sets forth these grounds for relief:
1. Smith’s due process rights were violated because, according to the BOP Program
Policy, investigators do not have the authority to re-write an incident report “after it
waswritten and heard by the Unit Disciplinary Officer.”
2. Therewas no evidence to support the finding of guilt.
Respondent filed a response at Doc.8 and Smith filed a reply at Doc. 10.
RELEVANT FACTS AND PROCEDURAL HISTORY
Smith is serving a 120-month sentence imposed in the Eastern District of Missouri in 2016.
United States v. Smith, Case No. 15-cr-225-CEJ (Doc. 91). His projected release date is January 3,
2024.Seewww.bop.gov/inmateloc/(last visited on Sept.3, 2020).
On May 31, 2017, Incident Report Number 2993262 was issued to Smith charging him with
Fighting in violation of Prohibited Act Code 201. The Report concerned a fight involving several
inmates that occurred at Marion on April 18, 2017. The fight resulted in injuries to an inmate named
Eddie Jackson. A copy of the Report was deliveredto Smith on that same date. (Doc. 8-1, pp. 2-3).
Incident Report Number 2993262 was re-issued on June 20, 2017, and delivered to Smith on
that same date. The face of the Report states thatit was “re-written” to “update the Prohibited Act Code
andincludeadditional details on the incident.” The charge was changed to “Assaulting any person” in
violation of Prohibited ActCode 224. (Doc. 8-1, pp. 4-5).
A Notice of Discipline Hearing was delivered to Smith on June 21, 2017. The Notice states
that Smith declined the opportunity to have a staff member represent him at the hearing. He requested
two witnesses, inmates Eddie Jackson and Leonard Brown. (Doc. 8-1, p. 7).
The DisciplineHearing Officer (DHO) Report states that a hearing was held on July 11, 2017.
The two witnesses requested by Smith appeared at the hearing. The Report listed the evidence
considered by the DHO, which included the Incident Report, the fact that Smith declined to make a
statementduring the investigation,Smith’s statement at the hearing, the inmate witnesses’statements,
a memorandum prepared by Lieutenant Crooks, medical assessments of inmates involved in the
incident, and video of the incident.Smith stated at the hearingthat he did not put his hands on Jackson
or strike him. Smith acknowledged that he was part of the group but claimed that he was trying to
defuse the situation and wastrying to tell the guys to chill out. The video showed aninmate (not Smith)
throw a chairat Jackson and another inmate hit Jackson with a trash can. A group of inmates, including
Smith, ran after Jackson and surrounded him. Some of the inmates kicked and stomped on Jackson as
he lay on the floor. The DHO concluded that she could not determine from the video whether Smith
kicked or stomped on Jackson, but the video did show that Smith was part of the group that chased
Jackson. She also concluded thatthe video did not show Smith trying to break anything up. The DHO
concluded that there was “some evidence” that Smith aided in the assault of Jackson. (Doc. 8-1, pp. 9-
12).
Smith filed an AdministrativeRemedy Appeal (grievance) raisingthefollowingissues:
1. The same employee, Huggins, reported and investigated the incident, in violation of
prison procedure and due process;
2. Huggins’sfindings were not credible in that his report was contradictedby the Incident
Report and the DHO’s review of the video.
3. An inmate named Daniel “offered to submit an exonerative affidavit,and was shipped
prematurely.”
The Appeal was denied, and Smith appealed to the Office of General Counsel, which also
denied his appeal. (Doc 8-1, pp. 13-18).
APPLICABLE LEGAL STANDARDS
1. Due Process Requirements in PrisonDisciplinary Proceedings
BOP inmates can challenge the loss of good conduct credit by way of 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 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 563-566;Henderson v. U.S. Parole Commission, 13 F.3d 1073, 1077 (7th
Cir. 1994).
The findings of the discipline hearing officer must be supported by “some evidence in the
record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). A habeas 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.3dat1077.
2. The Exhaustion Requirement
A habeas petitioner must exhaust administrative remedies before the Court can consider a
challenge to prison disciplinary proceedings. Jackson, 707 F.2d at 949; Clemente v. Allen, 120 F.3d
703, 705 (7th Cir. 1997).
The exhaustion requirement in Section 2241 cases is not statutorily mandated and is thus not
jurisdictional. The Supreme Court has identified two purposes for the exhaustion requirement, i.e.,
protection of the agency’s authority, and promotion of judicial economy. Gonzalez v. O’Connell, 355
F.3d 1010, 1016 (7th Cir. 2004). There can be exceptions to the requirement, but “sound judicial
discretion governs.” Id., at 1017.
The BOP has created an Administrative Remedy Program which “allow[s] an inmate to seek
formal review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. §542.10(a).
The Program is described in detail in the Response to the Petition, Doc. 8, pp. 3-4.
ANALYSIS
Respondent argues that Smith’s first argument cannot be considered because that claim was
not exhausted. The Court agrees.
Smith did not mention the amendment of the Incident Report in his Administrative Remedy
Appeal. (SeeDoc 8-1, pp. 13-18). He offers no excuse for his failure to exhaust, and the claimcannot
be considered.
Even if the first claim could be considered, it has no merit. Smithasserts that prison procedures
do not permit an SIS investigator to re-write an incident report, but prison regulations do not
automatically give rise to a protected liberty interest. Jones v. Cross, 637 F.3d 841, 846 (7th Cir. 2011).
Smith received written notice of the amended charge well in advance of the hearing, which is what is
required. Wolff,418 U.S. at 563.
Smith’s second claim fails because there was the required “some evidence” to support the
finding of guilt, most notably the video which showed that Smith was part of a group of inmates who
chased Jackson down the range. Smith argues that the video did not show him striking or assaulting
Jackson and Jackson said that Smith did not assault him, so he cannot be guilty. (Doc.1, p. 7). This
argument ignores the DHO’s explanation that he was found guilty of aiding in the assault. (Doc. 8-1,
p. 12). BOP disciplinary procedures treat aiding or abetting a prohibited act the same as committing
the prohibited act. BOP Program Statement 5270.09, § 541.3(a), available at
https://www.bop.gov/policy/progstat/5270_009.pdf (last visited on Sept. 4, 2020). The DHO
consideredother evidence as well, including the statements of Smith’s witnesses, but didnot find those
statements to be credible.
In effect, Smith is asking this Court to reweigh the evidence, which it cannot do. Under the
“some evidence” standard, this Court does not reweigh the evidence or determine credibility.Meeks v.
McBride, 81 F.3d717, 720 (7th Cir. 1996).The Court does not “assess the comparative weight of the
evidence underlying the disciplinary board’s decision.”Webb v. Anderson, 224 F.3d 649, 652 (7th Cir.
2000). Further, 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, 1334-1335 (7th Cir. 1989).
The “some evidence” standard is “lenient.” Webb v. Anderson, 224 F.3d 649, 652 (7th Cir.
2000), as amended (Aug. 18, 2000). Even “meager” evidence satisfies due process where “the record
is not so devoid of evidence that the findings of the disciplinary board were without support or
otherwise arbitrary.” Hill, 472 U.S. at 457.
Theevidence here was more than meagerand easily satisfiesthe “some evidence” standard.
CONCLUSION
Petitioner Smith has not demonstrated that he was denied due process in connection with the
disciplinary proceedings and thus his Petition for Writ of Habeas Corpus under 28 U.S.C. §2241
(Doc.1) is DENIED. This action is DISMISSED with prejudice, and the Clerk of Court is
DIRECTEDto enter judgment accordingly.
If Smith 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 Smith plans to present on appeal. See FED.
R. App. P. 24(a)(1)(C). If Smith 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 not necessary for Smith to obtain a certificate of appealability from this disposition
of his Section 2241 Petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: September 8, 2020
tel Meet
NANCY J. ROSENSTENGEL
Chief U.S. District Judge