Baker v. Bergami

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Marvin Baker, )

)

Petitioner, )

) Case No. 3:23-cv-50028

v. )

) Judge Iain D. Johnston

Warden, USP Tucson,1 )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Marvin Baker has filed a habeas petition under 28 U.S.C. § 2241,

seeking the restoration of good conduct time he lost as a result of a prison disciplinary

proceeding. For the following reasons, his habeas petition [1] is denied.

I. Background

During his time as an inmate at United States Penitentiary (“USP”) McCreary,

Baker was disciplined for fighting with another inmate. According to an incident

report, on March 30, 2022, correctional officer Stephens observed Baker fighting with

another inmate in his cell. Dkt. 17-1, Exhibit A, Attachment 2. Correctional officer

Stephens ordered both inmates to stop fighting, but both inmates refused to obey the

order. After correctional officer Stephens deployed OC spray twice, Baker and the

1 Baker filed the instant petition when he was incarcerated at USP Thomson and properly

named the Warden at that facility, Thomas Bergami, as Respondent. Dkt. 1. Baker has since

been transferred to USP Tucson. Dkt. 14. Therefore, Thomas Bergami has been substituted

for the current Warden at USP Tucson as the proper respondent with immediate control over

the petitioner in accordance with Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004) and In re

Hall, 988 F.3d 376, 379 (7th Cir. 2021).

other inmate submitted to hand restraints. Both inmates were escorted to the shower

to decontaminate and then to holding cells without further incident.

On March 30, 2022, the date of the incident, correctional officer Stephens

completed an incident report charging Baker with a violation of Prohibited Act Code

201 (fighting with another person). Dkt. 17-1, Exhibit A, Attachment 2. On the same

date, Baker was given a copy of the incident report. Baker told the investigating

lieutenant that the allegation was untrue and that the camera in front of his cell

would show that he and the other inmate were not fighting. Baker did not request

any witnesses. After the FBI and AUSA declined to prosecute Baker, the incident

report was released and processed on April 3, 2022.

Thereafter, Unit Discipline Committee (“UDC”) chairman Keith conducted an

initial review of the incident report. Dkt. 17-1, Exhibit A, Attachment 2. Baker did

not make a statement to chairman Keith about the incident. Due to the seriousness

of the offense, chairman Keith referred the incident report to the discipline hearing

officer (“DHO”). On April 4, 2022, Baker was advised of the rights afforded to him at

a hearing before the DHO. Dkt. 17-1, Exhibit A, Attachments 3–4. Baker identified

that he wished to call witnesses at the disciplinary hearing, but he did not name any

witnesses. Baker also requested a staff representative. Baker waived his right to be

provided with a written copy of the charges at least 24 hours before the disciplinary

hearing.

At the hearing conducted by the DHO on April 4, 2022, Baker was informed

that his elected staff representative was unavailable. Dkt. 17-1, Exhibit A,

Attachment 5. As a result, Baker requested Unit Manager Clark as his staff

representative and requested that Clark review video footage of the incident.

Therefore, the DHO postponed the disciplinary hearing to allow Unit Manager Clark

to review the video footage and meet with Baker.

At the reconvened disciplinary hearing on April 5, 2022, Unit Manager Clark

reported to the DHO that he was not able to see a fight on the video because the

camera view was pointed down range, not into the cell. Dkt. 17-1, Exhibit A,

Attachment 5. The DHO asked Baker if he was requesting anything else from Unit

Manager Clark, and Baker said “No.” Id. Baker then alleged staff misconduct,

arguing that the correctional officer used excessive force by spraying him even though

he and the other inmate were not fighting. As a result, the DHO suspended the

hearing until the appropriate investigatory official gave permission to continue,

which occurred on April 21, 2022.

The DHO reconvened the disciplinary hearing on April 28, 2022. Dkt. 17-1,

Exhibit A, Attachment 5. Unit Manager Clark was not asked to return for the hearing

because Baker had previously stated he had no other requests for Clark. Dkt. 17-1,

Exhibit A ¶ 19. During the hearing, Baker did not request anything further from Unit

Manager Clark or to have him present at the hearing. Id. Baker did not identify or

request to call any witnesses during the hearing. At the disciplinary hearing, Baker

stated that he understood his rights and made a statement in his defense. Dkt. 17-1,

Exhibit A, Attachment 5. Baker stated that he was sprayed for no reason and that he

was not guilty of the offense.

The DHO found that Baker committed the prohibited act of fighting with

another person. Dkt. 17-1, Exhibit A, Attachment 5. The DHO relied on the incident

report, staff memorandums, written statements of witnesses, and Baker’s own

statements in finding that the greater weight of the evidence showed that Baker

committed the prohibited act. Specifically, the DHO found that Baker’s denial did not

outweigh correctional officer Stephens’ written statement of the incident. The DHO

noted that other than Baker’s statement, Baker provided no evidence that

undermined correctional officer Stephens’ statement or that the statement was

fabricated. Baker was sanctioned with a disallowance of 27 days of good conduct time

and a loss of email privileges for 3 months. The DHO report was delivered to Baker

on May 17, 2022.

Baker submitted an appeal regarding the DHO report to the Bureau of Prisons

(“BOP”) Regional Office, which was received on August 19, 2022. Dkt. 17-2, Exhibit

B ¶ 9. The appeal was rejected because it was submitted untimely and to the wrong

region. Id. Baker was instructed to submit his appeal to the region in which he was

then housed. Id. Baker also submitted an appeal to the BOP Central Office, which

was received on October 11, 2022. Dkt. 17-2, Exhibit B ¶ 10. The appeal was rejected

because Baker had been instructed previously to submit the appeal to the proper

regional office. Id. Baker was instructed to file his appeal in the North Central

Regional Office before submission to the central office level. Id. Baker also appealed

to the North Central Regional Office, which was received on September 19, 2022. Dkt.

17-2, Exhibit B ¶ 11. The appeal was rejected because Baker did not include a copy

of the DHO report as required. Id. Baker was given 10 days to refile his appeal. Id.

Baker did not refile his appeal as instructed, and BOP records reveal that Baker has

not filed any further appeals regarding the DHO report as of June 14, 2023. Dkt. 17-

2, Exhibit B ¶ 12; Dkt. 17 at 4.

In January 2023, Baker filed the instant habeas petition under 28 U.S.C.

§ 2241. Dkt. 1. Baker alleges that his right to due process was violated during the

disciplinary proceedings because: (1) he was not provided a staff representative at his

hearing; and (2) UDC chairman Keith reviewed the incident report by himself and

conducted the UDC hearing at Baker’s cell with other inmates nearby that could hear

the discussion. Dkt. 1. Upon receiving Baker’s petition, the Court ordered briefing.

The petition is now fully briefed. Dkts. 17, 23.

II. Analysis

Persons in the custody of the Bureau of Prisons have a liberty interest in good

conduct time and can challenge the loss of good conduct time by filing a motion for

habeas relief under 28 U.S.C. § 2241. See Jones v. Cross, 637 F.3d 841, 845 (7th Cir.

2011); Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir. 1983). Although prisoners have

due process rights in prison disciplinary proceedings, 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). As a result,

a prisoner has received due process if each of the following requirements are met: the

prisoner (1) receives written notice of the disciplinary charges at least 24 hours before

a disciplinary hearing; (2) has an opportunity to be heard before an impartial decision

maker; (3) is able to call witnesses and present evidence that will not be unduly

hazardous to safety or correctional goals; and (4) receives a written statement of the

evidence relied on and the reason for the decision. Jones, 637 F.3d at 845; Wolff, 418

U.S. at 565–66.

The disciplinary decision will be upheld as long as it is supported by “some

evidence,” which is a meager standard. Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir.

2007) (“[O]nce the meager threshold has been crossed our inquiry ends.”). On habeas

review, the court does not reweigh the evidence or determine credibility.

Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985);

Meeks v. McBride, 81 F.3d 717, 720 (7th Cir. 1996). “Instead, the relevant question is

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

by the disciplinary board.” Hill, 472 U.S. at 456; see also Henderson v. U.S. Parole

Comm’n, 13 F.3d 1073, 1077 (7th Cir. 1994) (finding that a court can overturn a

disciplinary decision “only if no reasonable adjudicator could have found [the

petitioner] guilty of the offense on the basis of the evidence presented”).

A federal prisoner must exhaust their federal administrative remedies before

seeking habeas relief in court. See Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir.

2004) (“A common-law exhaustion rule applies to § 2241 actions even though

§ 1997e(a) does not.”). Proper exhaustion requires compliance with the BOP’s

Administrative Remedy Program, which is set out at 28 C.F.R. §§ 542.10–542.19. See

Woodford v. Ngo, 548 U.S. 81, 90–91 (2006) (“Proper exhaustion demands compliance

with an agency’s deadlines and other critical procedural rules because no adjudicative

system can function effectively without imposing some orderly structure on the course

of its proceedings.”). Under the program, a prisoner challenging the decision of the

DHO must submit an appeal initially to the Regional Director for the region where

the prisoner is currently located. 28 C.F.R. § 542.14(d)(2). The appeal must be

“accompanied by one complete copy or duplicate original of the institution Request

and response” and submitted within 20 calendar days of the date the Warden signed

the response. Id. § 542.15(b). If the prisoner is not satisfied with the Regional

Director’s response, they may submit a final appeal to the General Counsel in

Washington, D.C. Id. § 542.15(a), (b).

A. Failure to Exhaust

Respondent argues that Baker failed to exhaust his administrative remedies

before filing his petition because he did not properly appeal to the Regional Director.

Specifically, Baker initially appealed to the wrong regional office and then when he

filed an appeal with the correct regional office, he did not include a copy of the DHO

report as required. Baker was then given 10 days to refile a proper appeal, but

Respondent argues that he failed to do so.

Baker does not respond to the argument that he failed to exhaust his

administrative remedies, and nothing in the record presented to the Court reveals

that he properly exhausted his claims. Baker states only that he “used all of his

Administrative Remedies,” noting that he appealed both to the Regional Director and

to the Central Office. Dkt. 1 at 2. However, Baker admits that his first appeal to the

Regional Director was rejected because it was not submitted to the proper regional

office. Baker also admits that his appeal to the Central Office was similarly rejected

because he was already instructed to submit his appeal to the proper regional office.

Baker makes no mention of the appeal he submitted to the proper regional office or

that it was rejected because he failed to attach the DHO report as required. Baker

does not argue and there is no evidence that he resubmitted a proper appeal by

attaching the DHO report as instructed. Baker was instructed on how to correct the

defects in each of his appeals, but he continually failed to file his appeals properly

through the BOP’s Administrative Remedy Program.

Accordingly, Baker failed to exhaust his administrative remedies before filing

the instant petition. However, as detailed below, even if Baker had exhausted his

administrative remedies, his claims would still fail on the merits.

B. Denial of Due Process

Baker first argues that he was denied due process because he was not provided

with a staff representative at his disciplinary hearing. Specifically, Baker argues that

although the DHO report states that Unit Manager Clark was appointed as his staff

representative, Clark was not present at his first or second hearing. Accordingly,

Baker accuses correctional officer Stephens of “lying by omission” in his declaration

when he stated that Unit Manager Clark made a statement to the DHO at the

disciplinary hearing. Dkt. 23 at 2. Additionally, in his reply brief, Baker also states

that Unit Manager Clark told him he would not be his staff representative because

he would not “go against his staff for an inmate.” Dkt. 23 at 1.

As Respondent points out, the evidence establishes that Baker was provided

with a staff representative, namely Unit Manager Clark. The DHO even postponed

the disciplinary hearing to allow Unit Manager Clark to meet with Baker and review

the video footage of the incident as Baker requested. The DHO report shows that Unit

Manager Clark reported his findings to the DHO at the first hearing and that Baker

had no further requests for Clark. It is undisputed that Unit Manager Clark did not

attend Baker’s second disciplinary hearing, but Baker does not argue that he asked

the DHO for his staff representative to be present or for his hearing to be postponed

for his staff representative to appear. Instead, the DHO stated that during the second

hearing, Baker did not request to have Unit Manager Clark present at the hearing or

request anything further from him. Dkt. 17-1, Exhibit A ¶ 19.

Even assuming Baker asked for Unit Manager Clark to be present at his

hearing, his claim for relief still fails. There is no constitutional due process right to

a staff representative. “[D]ue process d[oes] not require that the prisoner be appointed

a lay advocate, unless ‘an illiterate inmate is involved ... or where the complexity of

the issue makes it unlikely that the inmate will be able to collect and present the

evidence necessary for an adequate comprehension of the case.’” Miller v. Duckworth,

963 F.2d 1002, 1004 (7th Cir. 1992) (quoting Wolff, 418 U.S. at 570); see also Martin

v. Zatecky, 749 F. App’x 463, 466 (7th Cir. 2019) (unpublished).

Here, Baker does not argue, and there is no evidence to support, that he is

illiterate or that the charge was too complex for him to proceed with his disciplinary

hearing. Accordingly, like the petitioner in Wolff, Baker is not “within the class of

inmates entitled to advice or help from others in the course of a prison disciplinary

hearing.” Wolff, 418 U.S. at 570; see also Duarte v. Turner, 46 F.3d 1133 (7th Cir.

1995) (dismissing claim that BOP staff representative was ineffective because

petitioner was not constitutionally entitled to the aid of a staff representative).

Accordingly, Baker has not identified any violation of his due process rights relating

to his right to a staff representative.

Next, Baker argues that his rights were violated when UDC chairman Keith

reviewed the incident report by himself because the inmate handbook states that the

UDC is “a body” that hears disciplinary infractions. Dkt. 1 at 5. Baker also takes issue

with chairman Keith conducting the UDC hearing at his cell with other inmates

nearby that could hear the discussion.

As Baker points out, the UDC ordinarily consists of two or more staff that

perform an initial review of the incident report. Dkt. 17-1, Exhibit A, Attachment 1

at 24; 28 C.F.R. § 541.7(b). However, the BOP’s policy requires only one UDC staff

member to perform an initial review when the incident report is required by policy to

be referred to the DHO. Dkt. 17-1, Exhibit A, Attachment 1 at 24.

Here, Baker was charged with a violation of Prohibited Act Code 201 for

fighting with another person, which is a high severity level offense. Dkt. 17-1, Exhibit

A, Attachment 1 at 10, 47. Under the BOP’s Inmate Discipline Program, the UDC

automatically refers all high severity level charges to the DHO for further review. Id.

at 10, 24; 28 C.F.R. § 541.7(a)(4). Consistent with the Inmate Discipline Program,

Baker’s incident report was automatically referred to the DHO. Accordingly, UDC

chairman Keith’s review of the incident report was in accordance with the BOP’s

policy.

Even assuming UDC chairman Keith’s review of the incident report was in

violation of the BOP’s policy, a violation of prison policy does not establish a

constitutional violation. See Keller v. Donahue, 271 F. App’x 531, 532 (7th Cir. 2008)

(unpublished) (rejecting challenges to prison disciplinary proceeding because

“[i]nstead of addressing any potential constitutional defect, all of [the petitioner’s]

arguments relate to alleged departures from procedures outlined in the prison

handbook that have no bearing on his right to due process”); Kramer v. Jenkins, 806

F.2d 140, 142 (7th Cir. 1986) (“[T]he violation of an administrative rule is not the

same thing as the violation of the Constitution.”).

Baker also takes issue with his UDC hearing being conducted in the hallway.

However, Baker has not identified any right he was denied because of his UDC

hearing, which as Respondent points out was only a conduit for the automatic referral

to the DHO. Therefore, Baker has not established any denial of his due process rights

stemming from the UDC hearing.

Baker had an opportunity to explain his side of the story to the DHO as

required by Wolff. The DHO weighed the evidence and credited the correctional

officer’s statement in the incident report over Baker’s denial. When evaluating

whether the disciplinary decision is supported by “some evidence” in the record, “the

relevant question is whether there is any evidence in the record that could support

the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455–56. The

incident report “alone” can “provide[ ] ‘some evidence’ for the [DHO’s] decision.”

McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999); Chambers v. Ciolli, 19 F.4th

984, 986 (7th Cir. 2021) (“[T]he district court was right that the incident reports

sufficed to clear that low bar.”). Accordingly, “some evidence” supports the DHO’s

disciplinary decision, which is all that due process requires. Scruggs, 485 F.3d at 941;

see also Hill, 472 U.S. at 457 (“The Federal Constitution does not require evidence

that logically precludes any conclusion but the one reached by the disciplinary

board.”). Therefore, Baker has not established that his due process rights were

violated during the disciplinary proceedings.

III. Conclusion

For the reasons stated above, Baker’s petition [1] is denied. Baker is advised

that this is a final decision ending his case in this court. If Baker wants to appeal, he

must file a notice of appeal with this court within 60 days of the entry of judgment.

See Fed. R. App. P. 4(a)(1)(B)(iii). Baker need not bring a motion to reconsider this

Court’s ruling to preserve his appellate rights. However, if Baker wishes the Court to

reconsider its judgment, he may file a motion under Federal Rule of Civil Procedure

59(e) or 60(b). Any Rule 59(e) motion must be filed within 28 days of the entry of this

judgment. See Fed. R. Civ. P. 59(e). A timely Rule 59(e) motion suspends the deadline

for filing an appeal until the Rule 59(e) motion is ruled upon. See Fed. R. App. P.

4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a reasonable time and, if

seeking relief under Rule 60(b)(1), (2), or (3), must be filed no more than one year

after entry of the judgment or order. See Fed. R. Civ. P. 60(c)(1). A Rule 60(b) motion

suspends the deadline for filing an appeal until the Rule 60(b) motion is ruled upon

only if the motion is filed within 28 days of the entry of judgment. See Fed. R. App. P.

4(a)(4)(A)(vi). The time to file a Rule 59(e) or 60(b) motion cannot be extended. See

Fed. R. Civ. P. 6(b)(2).

Date: May 14, 2025 SS SS

Tain D. Johnston

United States District Judge

13