Zakarian v. White

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD A. ZAKARIAN, :

CIVIL ACTION NO. 3:20-0121

Petitioner :

(JUDGE MANNION)

v. :

WARDEN D. K. WHITE, :

Respondent :

MEMORANDUM

Richard A. Zakarian, an inmate confined in the Allenwood Low Security

Correctional Institution, White Deer, Pennsylvania, filed the above captioned

petition for a writ of habeas corpus, pursuant to 28 U.S.C. §2241. (Doc. 1,

petition). He challenges a disciplinary action against him, which occurred

while he was incarcerated at the Federal Correctional Institution, Ashland,

Kentucky. Id. Specifically, Petitioner presents the following nine grounds for

review:

1. Correctional Officer K. Powell was the aggressor, not

Petitioner.

2. Petitioner was not given adequate time for discovery to

defend himself.

3. CO Powell did not follow protocol, in that if he felt threatened,

proper procedure was to hit the distress button.

4. Conflicting statements between CO Powell and Petitioner.

5. CO Powell “took additional retaliation by throwing out

personal legal and manuscripts that took hundreds of hours

to produce, shouting ‘garbage, garbage, garbage’.”

6. Petition was denied his constitutional right to a polygraph

during a prison discipline hearing.

7. Confession of staff members who “admit that the incident

happened.”

8. Cotinual verbal harassment by CO Powell.

9. Equitable tolling due to Petitioner being transferred from

facility to facility.

Id. For relief, Petitioner requests the incident report be expunged and his

good conduct time be restored. Id. The petition is ripe for disposition and, for

the reasons that follow, will be denied.

I. Background

On May 23, 2019 at approximately 7:30 p.m., Lt. D. McCallister,

delivered Incident Report No. 3259844 to Zakarian, charging him with

threatening another with bodily harm, in violation of Code 203. (Doc. 13-1 at

6, Incident Report). The incident report reads as follows:

On 5/23/19 at 4:48 PM, I (C/O K. Powell) was conducting mail

pass in my assigned Unit. Inmate Zakarian register number

58933-060 came into my office to present his ID for his mail.

Inmate Zakarian continued to walk towards me until he was into

my personal space (within one foot of my person). I told Inmate

Zakarian to step back due to him being in such close proximity

to me. Inmate Zakarian stepped back, but immediately began to

take an aggressive posture. Along with taking an aggressive

posture inmate Zakarian raised his voice stating “Rule number 3.

You better respect me if you want me to respect you.” Inmate

Zakarian was also pointing his left index finger at me while

making his previous statement. I told Inmate Zakarian to turn

around and put his hands on the wall for a pat search. Inmate

Zakarain then stepped within inches of my face with his fists

clenched. I felt that my personal safety was in jeopardy, and his

actions were very threatening in nature. I then repeated my

previous command as I placed my right hand on Inmate

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Zakarian’s left arm to guide him in the direction of the wall and

pointed to the wall. Inmate Zakarian finally turned and submitted

to a pat search. While conducting my pat search, Inmate

Zakarian dropped his hands off the wall, and began to turn

around. I warned Inmate Zakarian to keep his hands on the wall.

Inmate Zakarian once again dropped his hands and began to

turn around during my pat search. I again directed Inmate

Zakarian not to drop his hands, and I completed my pat search.

I then had Inmate Zakarian escorted to the Lieutenant’s Office.

Id.

On May 28, 2019, Petitioner appeared before the Unit Discipline

Committee (“UDC”). (See Doc. 13-1 at 6, Committee Action). Due to the

severity of the charges, the UDC referred the charge to the Discipline

Hearing Officer (“DHO”). Id. During the UDC hearing, staff member, T. Todd

informed Zakarian of his rights at the DHO hearing and provided him with a

copy of the “Inmate Rights at Discipline Hearing” form. (Id. at 12, Inmate

Rights at Discipline Hearing). Petitioner was also provided with an

opportunity to request witnesses, which he declined. (Id. at 7). Petitioner’s

attitude was noted as cooperative, and Petitioner made the following

statement:

I went to get my mail. My foot was over the line in Mr. Powell’s

office. Officer Powell stated to me “can’t you read mother fucker,

get back.” I stepped back and told Officer Powell I was being

professional to him so I think he should be professional to me.

Officer Powell stood up and pushed me in the chest and

slammed me against the wall. Told me if I moved he would belt

me.

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Id.

On June 13, 2019, Zakarian appeared for a hearing before DHO, M.

Gyurke. (Doc. 13-1 at 13-16). He waived his right to have witnesses. Id.

Zakarian denied the charges before the DHO. Id.

In addition to the Incident Report and Investigation, the DHO

considered the following documentary evidence: Memorandum dated May

23, 2019 from Lt. T. Vangundy; 1 photo sheet dated May 23, 2019 and a

Clinical Encounter dated May 23, 2019 for Inmate Zakarian. Id.

The specific evidence relied on to support the DHO’s findings was 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, and you waived the previously requested

staff representative and signed a statement confirming this. You

indicated to the DHO you were ready to proceed.

The DHO notes that during the investigation of this incident

report and during the DHO hearing you made allegations

regarding staff misconduct. The DHO forwarded your allegations

to the appropriate staff. The DHO also notes that a typographical

error was observed in Section 13 of the Incident Report. Although

the date listed is “04-48-2019”, the dates in Sections 4, 11, and

15 all reflect “05-23-2019”. Since the date listed in Section 13 is

not an actual date and the correct date is listed in every other

applicable section, the DHO concluded this was a typographical

error and does not believe this interfered with your ability to

prepare a defense for this charge.

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The DHO finds you to have committed the prohibited act of

conduct disruptive to the orderly running of the institution most

like threatening another person, Code 299 most like code 203.

The DHO bases this decision on the written statement of the

reporting officer:

On 5/23/19 at 4:48 PM, I (C/O K. Powell) was conducting mail

pass in my assigned Unit. Inmate Zakarian register number

58933-060 came into my office to present his ID for his mail.

Inmate Zakarian continued to walk towards me until he was into

my personal space (within one foot of my person). I told Inmate

Zakarian to step back due to him being in such close proximity

to me. Inmate Zakarian stepped back, but immediately began to

take an aggressive posture. Along with taking an aggressive

posture inmate Zakarian raised his voice stating “Rule number 3.

You better respect me if you want me to respect you.” Inmate

Zakarian was also pointing his left index finger at me while

making his previous statement. I told Inmate Zakarian to turn

around and put his hands on the wall for a pat search. Inmate

Zakarain then stepped within inches of my face with his fists

clenched. I felt that my personal safety was in jeopardy, and his

actions were very threatening in nature. I then repeated my

previous command as I placed my right hand on Inmate

Zakarian’s left arm to guide him in the direction of the wall and

pointed to the wall. Inmate Zakarian finally turned and submitted

to a pat search. While conducting my pat search, Inmate

Zakarian dropped his hands off the wall, and began to turn

around. I warned Inmate Zakarian to keep his hands on the wall.

Inmate Zakarian once again dropped his hands and began to

turn around during my pat search. I again directed Inmate

Zakarian not to drop his hands, and I completed my pat search.

I then had Inmate Zakarian escorted to the Lieutenant’s Office.

You denied the charge and stated as your defense “I went to get

my mail in his office. He has a little sign in there that says “Stop”.

My foot was barely over his line and he said “Can’t you read

motherfucker”. I was quoting his rules when I quoted Rule 3. I

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never raised my voice to him, I never clinched my fists, I never

raised my voice. It’s all fabricated to cover up him shoving me.”

The DHO considered your defense in which you deny

threatening Officer Powell and you deny clinching your fists or

raising your voice; however, the DHO relied on the eyewitness

account of the reporting staff member. Officer Powell is clear in

his report that while you were trying to get your mail, you came

within one foot of him and after being told to step back you

complied, but then took an aggressive posture. Further clear is

that you then raised your voice while stating “Rule Number 3.

You better respect me if you want me to respect you” while you

were pointing your finger at him. At this point you were ordered

to face the wall for a pat search and Officer Powell states that

you then stepped within inches of his face while clenching your

fists. Finally, he states that during the pat search you removed

your hands from the wall twice and attempted to turn around at

one point during the search. Although you deny this specific

behavior the DHO finds no obvious reason for the staff member

to fabricate this incident report and believes the staff member’s

observation was made strictly in the performance of his duties.

Furthermore, the reporting officer is under a legal obligation to

report truthful and accurate facts, whereas, you had much to lose

by accepting responsibility or being truthful in this matter and the

DHO believes that you are denying your role in this incident in an

effort to avoid being sanctions for your actions.

Granted, you did not specify that you would cause physical harm

to the staff member, the DHO believes that any reasonable

person, in this same circumstance, would interpret your

statement of “Rule Number 3. You better respect me if you want

me to respect you” and actions of being close to him while

clinching your fists and pointing at him during this incident as a

means to intimidate or communicate a threat to cause harm to

that individual.

Therefore, based on the evidence outlined above, the DHO finds

the greater weight of the evidence to support you committed the

prohibited act of conduct disruptive to the orderly running of the

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institution most like threatening another person, Code 299 most

like Code 203.

Id. The DHO sanctioned Zakarian on the Code 299 violation to twenty-

seven (27) days loss of Good Conduct Time; fifteen (15) days disciplinary

segregation; and six (6) months loss of commissary and phone, thru 12-12-

2019. Id. The DHO documented his reasons for the sanctions given as

follows:

Making vailed threats to a staff member promotes disrespect for

the staff member and seriously distracts from the staff member’s

ability to maintain control of his assigned area of responsibility

which not only disrupted the security and orderly operation of the

institution but created the potential for a larger disturbance to

occur as well.

The DHO disallowed this inmate’s Good Conduct Time in

accordance with his sentencing guidelines. The DHO imposed

the sanctions of disciplinary segregation and the loss of

commissary and phone to let the inmate know that he and he

alone will be held responsible for his action/behavior at all times

and to deter future behavior.

Id. Zakarian was advised of his appeal rights at the conclusion of the hearing.

Id.

On January 23, 2020, Zakarian filed the instant petition for writ of

habeas corpus, seeking expungement of Incident Report No. 3259884 and

the return of his good conduct time, arguing that “Powell took the aggressive

role, not [Petitioner]” and “if Powell told [Petitioner] to step back calmly, [he]

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would not have to cite Rule #3, which Powell himself documented that

[Petitioner] said.” (Doc. 1, petition)

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

found that there can be a liberty interest at stake in disciplinary proceedings

in which an inmate loses good conduct time. Id. Since Petitioner’s sanctions

did include the loss of good conduct time, Petitioner has identified a liberty

interest in this matter.

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 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

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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 with regard to

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. 445-46 (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 Bureau of Prisons has enacted specific procedures for disciplinary

proceedings. 28 C.F.R. §541.1, et seq. Under these procedures, a staff

member charges a prisoner with committing a prohibited act by issuing an

incident report. 28 C.F.R. §541.5(a). The incident report ordinarily must be

issued within 24 hours of the time the staff member became aware of the

prisoner’s involvement in the incident. Id. The incident is then investigated.

Id. at §541.5(b).

After the incident is investigated, the UDC reviews the incident report

and takes one of the following actions: 1) finds that the prisoner committed

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the prohibited act charged and/or a similar prohibited act as reflected in the

incident report; 2) finds that the prisoner did not commit the prohibited act

charged; or 3) refers the incident report to the DHO for further review. Id. at

§541.7(a). Prohibited acts are separated into four categories based on

severity: Greatest, High, Moderate, and Low. Id. at §541.3(a). If a prisoner is

charged with a prohibited act in the Greatest or High category, the UDC

automatically refers the incident report to the DHO for further review. Id. at

§541.7(a)(4).

Under the regulations, when an incident report is referred to the DHO,

a disciplinary hearing is conducted in accordance with the procedures set

forth at 28 C.F.R. §541.8. The prisoner is entitled to notice of the charges at

least 24 hours before the hearing. Id. at §541.8(c). The prisoner is entitled to

appear at the hearing and is entitled to staff representation at the hearing.

Id. at §541.8(d) & (e). The prisoner is entitled to make a statement and to

present documentary evidence. Id. at §541.8(f). A prisoner may request to

have witnesses appear at the hearing on his behalf, but the DHO may refuse

to call requested witnesses if they are not reasonably available, if their

presence would jeopardize institutional security, or if they would present

repetitive evidence. Id. The DHO considers all evidence presented at the

hearing. Id. The decision of the DHO must be based on at least some facts

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and, if there is conflicting evidence, the decision must be based on the

greater weight of the evidence. Id. Following the hearing, the DHO must

provide a written report documenting that the prisoner was advised of his

rights. Id. at §541.8(h). The report must document the evidence relied upon

by the DHO, the findings of the DHO, the sanctions imposed by the DHO,

and the reasons of the DHO for imposing those sanctions. Id.

In the instant case it is clear from the record that Zakarian was afforded

all of the required procedural rights set forth in Wolff. He received written

notice of the disciplinary charges at least twenty-four hours prior to the

hearing; he appeared at the hearing and made a statement refuting the

charges; he was given the right to a staff representative, an opportunity to

present witnesses and provide documentary evidence (though he chose not

to do so); and he was given a written statement explaining the DHO’s

decision. See Wolff, 418 U.S. at 564–66.

Petitioner raises nine challenges to his underlying disciplinary hearing.

Grounds one, three and four are simply Petitioner’s attempt to relitigate and

advocate his version of the events. Specifically, Petitioner alleges that as

soon as his foot crossed the threshold of Officer Powell’s office, Officer

Powell hurled abusive language at petitioner, “took [Petitioner’s] mail, threw

it at [him], sprung up, and shoved [Petitioner] in the chest with both hands.”

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(Doc. 1 at 7). Further, Petitioner alleges that Officer Powell did not “follow

protocol” if he was threatened, which suggests Officer Powell “was the

aggressor.” Id. at 7. Finally, Petitioner explicitly disputes that he clenched his

fists or assumed an aggressive stance. Id. Petitioner’s bare allegations are

not sufficient to overturn DHO Gyurke’s findings. Petitioner asks the Court to

credit his version of events over Officer Powell’s, which is tantamount to a

request to examine the record, independently assess his and Officer

Powell’s credibility, and weigh the evidence. Yet “Hill tells us, explicitly, that

such a credibility determination is not required.” See Thompson v. Owens,

889 F.2d 500, 502 (3d Cir.1989).

Petitioner’s second and seventh claim are related in that they both

concern the introduction of witnesses. (Doc. 1 at 7, 8). Petitioner claims that

he “was not given adequate time for discovery to defend [him]self.” Id.

Specifically, he alleges that there were “five inmates who witnessed the

incident” that did not testify at his hearing and that “two staff members admit”

that petitioner’s version of events is true. Id. The record reveals that

Petitioner received notice of his disciplinary action on May 23, 2019,

appeared before the UDC on May 28, 2019 and appeared for a hearing on

June 13, 2019. Thus, Petitioner had three weeks within which to prepare for

his defense, including gathering his witnesses or their statements. However,

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although clearly presented with the opportunity to present witnesses at his

hearing, Petitioner executed a form indicating that he did not wish to call any

witnesses. Thus, Petitioner fails to demonstrate a due process violation, in

that he was not prevented from calling witnesses, he simply chose to waive

his right to call witnesses prior to the hearing.

To the extent that Petitioner argues in ground six that he was denied

his constitutional right to a polygraph during the disciplinary hearing, initially,

the Court notes that there is no indication in the record that Petitioner

requested a polygraph test and was denied. Regardless, the Due Process

Clause itself does not provide a federal right to take a lie detector test in a

disciplinary hearing. See, e.g., Williams v. Werlinger, 451 Fed. Appx. 127 (3d

Cir. 2011) (per curiam) (No due process violation in habeas context when

federal prisoner was denied the opportunity to take a lie detector test for a

disciplinary hearing; such a right is not protected under due process.);

Flanagan v. Warden, U.S. Penitentiary, 784 F. Supp. 178, 181 (M.D. Pa.

1992) (Prisoner “had no constitutional right to the grant of his request for

‘scientific’ testing to establish non-ownership of the weapon”), aff’d sub nom.

Flanagan v. Warden USP-Lewisburg, 6 F.3d 779 (3d Cir. 1993)(table);

Patterson v. Gilmore, 974 F.2d 1340 (7th Cir. 1992) (inmate has no

constitutional right to a polygraph test); Freitas v. Auger, 837 F.2d 806, 812

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n.13 (8th Cir. 1988) (holding that prisoners are not entitled to polygraph tests

in disciplinary hearings); Wigal v. Wilson, 865 F.2d 262 (6th Cir. 1988) (no

right to polygraph or forensic tests). Petitioner is not entitled to habeas relief

on this ground.

Petitioner’s retaliation and verbal harassment claims, grounds five and

eighth, are challenges to Petitioner’s conditions of confinement and are not

properly raised in a §2241 challenge to the fact or duration of confinement.

See Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).

Finally, Petitioner’s claim of equitable tolling, raised in ground nine, is

moot, as Respondent does not dispute the timeliness of Petitioner’s filing.

(See Doc. 13 at 6).

Accordingly, a review of the record reveals that, in arriving at a finding

of guilt, the DHO relied on the incident report and investigation, viewed a

clinical encounter photo of Petitioner after the incident and considered a

memorandum from Lt. Vangundy. The DHO’s decision clearly meets the due

process requirement of being supported by “some evidence in the record”

under Hill. See Sinde v. Gerlinski, 252 F.Supp.2d 144, 150 (M.D. Pa. 2003)

(“If there is ‘some evidence’ to support the decision of the hearing examiner,

the court must reject any evidentiary challenges by the plaintiff”) (quoting Hill,

472 U.S. at 457).

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The Court finds that all sanctions imposed by the DHO were within the

limits of 28 C.F.R. §541.3. Petitioner was found guilty of a 200-level, high

severity level prohibited act. Pursuant to 28 C.F.R. §541.3, the following are

the sanctions available for 200-level offenses:

A. Recommend parole date rescission or retardation.

B. Forfeit and/or withhold earned statutory good time or non-

vested good conduct time up to 50%, or up to 60 days, whichever

is less, and/or terminate or disallow extra good time (an extra

good time or good conduct time sanction may not be

suspended).

B.1. Disallow ordinarily between 25% and 50% (14-27 days) of

good conduct time credit available for year (a good conduct time

sanction may not be suspended).

C. Disciplinary segregation (up to 6 months)

D. Make monetary restitution.

E. Monetary fine.

F. Loss of privileges (e.g. visiting, telephone, commissary,

movies, recreation).

G. Change housing (quarters).

H. Remove from program and/or group activity.

I. Loss of job.

J. Impound inmate’s personal property.

K. Confiscate contraband.

L. Restrict to quarters.

M. Extra duty.

Thus, the sanctions imposed by the DHO in the present case were

consistent with the severity level of the prohibited act and within the

maximum available to the DHO. Accordingly, the petition will be denied.

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III. Conclusion

For the reasons stated above, the petition for a writ of habeas corpus

will be DENIED. A separate Order will be issued.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATED: December 3, 2020

20-0121-01

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