Cedillo v. Howard

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LUIS CEDILLO, :

Petitioner, :

: No. 1:19-cv-951

v. :

: (Judge Rambo)

CATRICIA HOWARD, :

Respondent. :

MEMORANDUM

On June 3, 2019, pro se Petitioner Luis Cedillo (“Cedillo”), who is currently

confined at the Federal Correctional Institution Allenwood in White Deer,

Pennsylvania (“FCI Allenwood”), initiated the above-captioned action by filing a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.)

Cedillo challenges the decision of a Disciplinary Hearing Officer (“DHO”) who

found him guilty of assaulting other inmates. (Id.) After Cedillo paid the requisite

filing fee, the Court directed Respondent to show cause why Cedillo should not

receive the relief he seeks. (Doc. No. 4.) Respondent filed a response on July 11,

2019. (Doc. No. 6.) Cedillo has neither filed a traverse nor filed a motion for an

extension of time to do so. Accordingly, because the time period for filing a traverse

has expired, this matter is ripe for disposition. For the following reasons, Cedillo’s

§ 2241 petition will be denied.

I. BACKGROUND

On August 4, 2018, inmates at FCI Fort Dix assaulted other inmates by hitting

them with locks in socks. (Doc. No. 6-1 at 6, 9.) The injured inmates required

outside treatment for lacerations, bleeding, and facial bruising. (Id. at 6, 9, 13-14.)

Following the assault, a special investigative agent (“SIS”) began an investigation.

(Id. at 6, 9.) Upon completion of the investigation, the agent determined that Cedillo

and another inmate had committed the assault. (Id.) The injured inmates positively

identified Cedillo as one of the inmates who assaulted them. (Id. at 6, 9, 18-20.)

On October 3, 2018, Cedillo received a copy of Incident Report Number

3172144, charging him with a violation of Code 224, Assaulting Any Person. (Id.

at 5, 9.)1 Cedillo was advised of his rights, stated that he understood them, and

remarked “I have nothing to say.” (Id. at 10.)

On October 16, 2018, Cedillo appeared before the Unit Discipline Committee

(“UDC”).2 (Id. at 9.) When asked about the incident, Cedillo responded that he had

1 The record reflects that the Incident Report was “re-written and re-processed through the

disciplinary process.” (Doc. No. 6-1 at 6.) The DHO determined, however, that “[t]he processing

of this incident report did not violate [Cedillo’s] due process rights [because he was] provided

sufficient notice concerning the allegations against [him], and [he was] able to prepare a defense.”

(Id.)

2 The UDC hearing was held after more than five (5) working days of when staff became aware of

the incident had passed. (Id. at 5.) The DHO noted, however, that there “was a memorandum

from the Warden approving the [UDC] hearing.” (Id.) Respondent has included the memorandum

as part of the record. (Id. at 8.)

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“no comment.” (Id.) The UDC referred the Incident Report to the DHO for further

proceedings based on the seriousness of the offense. (Id. at 9-10.) Cedillo signed

an acknowledgment of his receipt of the Inmate Rights at Discipline Hearing Form

and Notice of Discipline Hearing Before the DHO and indicated that he did not want

a staff representative and that he had no witnesses he wished to call on his behalf.

(Id. at 11-12.)

On October 16, 2018, Cedillo appeared before the DHO, who advised him of

his rights. (Id. at 5.) During the hearing, Cedillo indicated that the report was not

entirely true, stating that “the shot caller for the ‘Blacks’ came to me and asked me

[to] deal with a problem with the ‘Columbians’ because I am the shot caller for the

‘Mexicans’; there was a big meeting in the third floor quiet room with the

‘Columbians’ and things got out of control.” (Id.) He also stated, “I don’t want [to]

say anymore because it will follow me at my next institution; it is frowned upon if I

cooperate with you.” (Id.)

The DHO first noted that “this incident report was re-written and re-processed

through the disciplinary process.” (Id. at 6.) The DHO concluded, however, that

Cedillo’s due process rights were not violated because he received sufficient notice

of the charge and was able to prepare a defense. (Id.)

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The DHO found the charge of Code 224, Assaulting Any Person, to be

supported by the greater weight of the evidence. (Id. at 6.) In doing so, the DHO,

considered the Incident Report, the Inmate Investigative Report, the medical

assessment of one of the injured inmates, and Cedillo’s statement. (Id.) The DHO

concluded that the injured inmate’s statement was more credible than Cedillo’s. (Id.)

The DHO also noted that both injured inmates identified Cedillo as one of their

assailants. (Id.)

The DHO sanctioned Cedillo with disallowance of twenty-seven (27) days of

good conduct time and six (6) months’ loss of commissary and email privileges. (Id.

at 7.) The DHO issued his report on November 30, 2018, and a copy was delivered

to Cedillo that same day. (Id.) Cedillo appealed to the Bureau of Prisons (“BOP”)’

regional office, which denied his appeal on December 21, 2018. (Doc. No. 1 at 30.)

He subsequently appealed to the Central Office, which notified him that its response

was due on or before May 17, 2019. (Id. at 32.) The Central Office subsequently

notified Cedillo that additional time was needed to respond. (Id.)

Cedillo then filed the instant § 2241 petition. In his petition, Cedillo argues

that his due process rights were violated because: (1) his UDC hearing was not held

within five (5) working days of the incident; (2) the DHO “gave SIS the opportunity

to rewrite the incident report”; (3) the DHO “relied on hearsay and [Cedillo]

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invoking [his] right to remain silent instead of physical evidence and proven facts to

support his decision”; (4) Officer Roman “bust[ed] into [his] cell” and charged him

with the assault because he is Mexican; and (5) the BOP “did not respond to [his]

appeal by May 17, 2019.” (Id. at 6-9.) As relief, Cedillo requests that the Incident

Report be expunged and that his privileges and good conduct time be restored. (Id.

at 8.)

II. 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 has held that that there can be a liberty interest at

stake in disciplinary proceedings in which an inmate loses good conduct time. Id.

at 557. Because Cedillo’s sanctions included the loss of good conduct time, he has

identified a liberty interest.

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

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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 about 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, 455-56 (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 Hill standard is minimal and does not require examination of the

entire record, an independent analysis of the credibility of the witnesses, or even a

weighing of the evidence. See Thompson v. Owens, 899 F.2d 500, 501-502 (3d Cir.

1989).

The BOP’s 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

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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. § 541.5. Under the regulations, an inmate “ordinarily

receives[s] the incident report within 24 hours of staff becoming aware of . . .

involvement in the incident.” Id. § 541.5(a) (emphasis added). The incident is then

referred to the UDC for an initial review pursuant to § 541.7.

The UDC review/hearing is “ordinarily [held] within five work days after [the

incident report] is issued” and does not include the initial day staff learns of the

incident, weekends or holidays. Id. § 541.7(c). If the UDC finds that a prisoner has

committed a prohibited act, it may impose any of the available sanctions set forth in

28 C.F.R. § 541.3 (Tables 1 and 2) except loss of good conduct time, disciplinary

segregation, or monetary fine. Id. 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 DHO for a hearing.

Id.

A DHO “will only conduct a hearing on the incident report if referred by the

UDC.” 28 C.F.R. § 541.8. An inmate will receive written notice of the charges 24

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hours before the DHO hearing unless the inmate waives the notice requirement in

which case the DHO can conduct the hearing sooner. Id. The inmate is permitted

to have a staff representative at the hearing and entitled to make a statement and

present documentary evidence. Id. After the hearing, the DHO will either: (1) find

the inmate committed the prohibited act or similar one described in the incident

report; (2) find the inmate did not commit the prohibited act charged; or (3) refer the

incident report back for further investigation, review and disposition. Id. If an

inmate is found to have committed a prohibited act, the DHO can impose any of the

available sanctions listed in Table 1 and 2 of § 541.3. Id. Finally, the written report

or decision of the DHO will contain the following: (1) whether the inmate was

advised of his or her rights during the proceedings; (2) the evidence relied on by the

DHO; (3) the DHO’s finding of guilt or innocence; (4) the sanctions imposed; and

(5) the reasons for the sanctions imposed. Id.

A. Cedillo Received His Due Process Rights

Contrary to Cedillo’s arguments, he received his procedural due process rights

under Wolff and the BOP regulations. Cedillo contends that his due process rights

were violated when the UDC did not hold his hearing within five (5) working days.

(Doc. No. 1 at 6.) However, he fails to show any prejudice that resulted from the

delay. See Bullard v. Scism, 449 F. App’x 232, 235 (3d Cir. 2011). Cedillo also

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contends that due process was violated when the DHO gave SIS the opportunity to

rewrite the Incident Report instead of dismissing the charge. (Doc. No. 1 at 7.)

Again, “[e]ven assuming arguendo that it was a violation of a [BOP] regulation or

policy for the incident report to be rewritten, [Cedillo] has not established that such

a violation prejudiced him.” Tucker v. Martinez, No. 1:10-CV-1057, 2010 WL

3191896, at *3 (M.D. Pa. July 20, 2010), Report and Recommendation adopted,

2010 WL 3191897 (Aug. 11, 2010).

The record reflects that Cedillo received the rewritten Incident Report on

October 3, 2018, and the hearing before the DHO was held on October 26, 2018.

(Doc. No. 6-1 at 5.) Cedillo chose not to have any witnesses testify on his behalf

and chose to proceed without a staff representative. (Id.) Moreover, Cedillo

received a copy of the DHO’s written decision, which included a review of the

evidence relied upon and the rationale behind the disciplinary action, on November

30, 2018. (Id. at 7.) For these reasons, the Court finds that Cedillo received all the

due process procedures to which he was entitled.

B. The DHO’s Decision Was Based on Sufficient Evidence

With respect to the sufficiency of the evidence, Respondent has attached to

his response the Incident Report, the DHO Report, medical records, and the Inmate

Investigative Report. (Doc. No. 6-1 at 5-10, 13-20.) These documents

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unequivocally establish that there was some evidence supporting the DHO’s

decision.

The DHO provided the following in his decision finding Cedillo guilty of

Code 224, Assaulting Any Person:

The DHO finds that on August 4, 2018, at approximately 6:00

p.m. you committed the prohibited act of Assaulting Any Person, code

224.

The specific evidence relied upon includes the written statement

of the reporting staff member, in which M. Bittner states: “Upon

completion of an SIS investigation on Sep 20, 2018, it was determined

that inmate Cedillo, Luis . . . assaulted inmates[] Gallardo-Gonzalez,

Linberto . . . and Hernandez, Edwin . . . in building 5811, on Aug 04,

2018 at approximately 6:00 p.m. Information was received that Cedillo

[and] Garcia-Porfiro assaulted inmates[] Gallardo-Gonzalez[] and

Hernandez because they believed inmate Hernandez was providing

information to staff. Cedillo and Garcia-Porfiro pulled out locks in

socks and attacked both, which resulted in injuries. Gallardo-Gonzalez

had bleeding and bruising on his face and his head and a laceration.

Hernandez had bleeding and bruising, and a laceration from the right

temple to midline of the forehead. Both inmates required treatment

from the outside local hospital. Inmate Gallardo and Hernandez

positively identified Garcia-Porfiro and Cedillo as the inmates

responsible for assaulting them. Based on documented physical

injuries, photographs, and inmate statements code 224 is warranted.”

. . .

The DHO considered the Inmate Investigative Report which

contains the statements from inmates Gallardo-Gonzalez and

Hernandez. Inmate Hernandez positively identified you as the assailant

who hit him in the head with a lock in a sock.

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The DHO considered the medical assessment of inmate

Hernandez, which states, he received a laceration to his right temporal

to the midline forehead from an apparent assault.

The DHO took into account your statement, in which you stated,

that the report is not entirely true; the shot caller for the “Blacks” came

to me and asked me [to] deal with a problem with the “Columbians”

because I am the shot caller for the “Mexicans”; there was a big meeting

in the third floor quiet room with the “Columbians” and things got out

of control; However, you then stated, I don’t want [to] say anymore

because it will follow me at my next institution; it is frowned upon if I

cooperate with you. The DHO believes that if you had exculpatory

evidence you would have presented it as your defense. This cases the

DHO to draw an adverse inference against you.

Accordingly, the DHO finds inmates Hernandez[’s] statement to

be more credible that you assaulted him with a lock in a sock.

The DHO weighed the facts of the case. The DHO finds, based

upon the greater weight of evidence, you committed the prohibited act

of Assaulting Any Person, code 224.

(Doc. No. 6-1 at 6.) Moreover, the DHO explained the imposed sanctions, stating:

The action/behavior on the part of any inmate to assault another

inmate or staff, whether or not serious injury is inflicted, threatens the

health, safety, and welfare of not only the inmates involved, but that of

all other inmates and staff. Inmates observing the assault may become

involved this created a larger disturbance for staff to control. Assaults

make it difficult to provide security for all concerned. The sanctions

imposed by the DHO were taken to let the inmate know that he, and he

alone, will be held responsible for his actions/behavior at all times.

The sanction involving the loss of Good Conduct Time was

imposed to comply with the mandatory sanction requirement. The

sanctions involving the loss of Email and Commissary privileges is

meant to demonstrate the seriousness of this offense to you, as well as

everyone incarcerated at this facility.

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(Id. at 7.)

Cedillo appears to suggest that the evidence was insufficient to support the

DHO’s finding, arguing that the DHO relied upon hearsay and Cedillo’s invocation

of his right to remain silent “instead of physical evidence and proven facts.” (Doc.

No. 1 at 7.) The record, however, reflects that Cedillo did not remain silent during

his hearing before the DHO; instead, he provided the statement set forth above.

Moreover, the United States Court of Appeals for the Third Circuit has noted that “a

decisionmaker may rely on hearsay evidence in a prison disciplinary proceeding.”

Carter v. Lawler, 446 F. App’x 420, 423 (3d Cir. 2011). Furthermore, as noted

above, when an inmate challenges the sufficiency of the evidence supporting the

DHO’s decision, “the ‘some evidence’ standard does not require . . . independent

assessment of the credibility of witnesses or weighing of the evidence.” Speight v.

Minor, 245 F. App’x 213, 216 (3d Cir. 2007) (quoting Hill, 472 U.S. at 455-56).

Thus, these decisions foreclose Cedillo’s argument that there was not “some

evidence” to support the DHO’s conclusion that he was guilty of violating Code 224,

Assaulting Any Person.3

3 Cedillo also suggests that his due process rights were violated when the BOP’s Central Office

did not respond to his appeal by May 17, 2019. (Doc. No. 1 at 9.) Inmates, however, do not have

a constitutionally protected right to the prison grievance and administrative remedy process. See

Burnside v. Moser, 138 F. App’x 414, 416 (3d Cir. 2005) (citing Flick v. Alba, 932 F.2d 728, 729

(8th Cir. 1991)). Moreover, even if the Central Office did not follow its own regulations regarding

the timing of responses, Cedillo fails to show any prejudice from such.

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C. Cedillo’s Equal Protection Claim

Cedillo also claims that his equal protection rights were violated because he

was “handpicked” for disciplinary proceedings because he is Mexican. (Doc. No. 1

at 8.) To succeed on such a claim, Cedillo “must demonstrate that the decision

makers in his case acted with a discriminatory purpose.” Lloyd v. Shartle, 514 F.

App’x 77, 80 (3d Cir. 2013) (citing McCleskey v. Kemp, 481 U.S. 279, 292 (1987)).

Other than his conclusory assertion, Cedillo has provided no evidence to suggest that

the investigating officers and the DHO charged him with a violation of Code 224

solely because he is Mexican. Thus, Cedillo is not entitled to relief on his equal

protection claim.

III. CONCLUSION

For the foregoing reasons, the Court concludes that Cedillo was accorded all

of his due process rights under Wolff and the BOP regulations, and that there was

some evidence supporting the DHO’s decision. Accordingly, Cedillo’s § 2241

petition (Doc. No. 1) will be denied. An appropriate Order follows.

s/Sylvia H. Rambo

SYLVIA H. RAMBO

United States District Judge

Dated: August 1, 2019

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