United States District Court, D. Oregon
Wissam Hammoud Talladega, AL, Petitioner Pro Se.
Amanda Marshall, United States Attorney, Natalie Wight, Assistant United States Attorney, Portland, Oregon, Attorneys for Respondent.
OPINION AND ORDER
ROBERT E. JONES, District Judge.
Petitioner, an inmate at FCI-Talladega, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 pro se. Petitioner alleges his constitutional rights were violated when the Disciplinary Hearings Officer (DHO) found him guilty of assaulting a corrections officer without due process. For the reasons set forth below, his Amended Petition [12) should be DENIED with prejudice.
As noted above, petitioner is currently incarcerated at FCI-Talladega, Alabama. At the time he filed this action and the time of the incident and subsequent disciplinary proceedings at issue, he was housed at FCI-Sheridan, Oregon. Petitioner's disciplinary conviction resulted in the loss of good time credit and time (suspended) in disciplinary segregation. Petitioner is currently serving a 258-month sentence for retaliating against a witness, solicitation of murder, use of a firearm during a crime of violence, possession of a firearm by a convicted felon and violation of parole. His projected release date is December 18, 2022, via good conduct release.
On October 30, 2012, an officer observed petitioner moving the "wrong way" in the flow of inmate foot traffic and ordered him to stop and return to medical. At some point, petitioner walked away from the officer and was again ordered to stop. Eventually, the officer directed petitioner to turn over his identification card. According to the officer, petitioner "pulled his ID card from his coat pocket and forcedly slapped it into [the officer's] left hand." Decl. of Daniel Cortez , Attachment 3, p. 17. The officer issued an incident report charging petitioner with assaulting any person and refusing to obey and order.
On November 8, 2012, the Bureau of Prisons (BOP) delivered a copy of the incident report to petitioner and advised him of his rights. Id., Attachment 3, pp. 6-7. Petitioner maintained that after being stopped by the officer he asked to talk to a lieutenant, and, not getting an answer, petitioner started to walk toward the lieutenants office. Petitioner stated that the officer then began to yell at him to go back to medical. Petitioner denied that he forcibly slapped his ID into the officer's hand, but admitted that he was upset when he gave it to him. Id. On November 13, 2012, the Unit Disciplinary Committee (UDC) considered petitioner's incident report and referred it to the DHO. Petitioner again denied that he was forceful when he gave his ID to the officer, but stated that he was emotional. Id., Attachment 3, p. 3.
On November 20, 2012, the DHO conducted a disciplinary hearing. Petitioner requested a staff representative and Staff Psychologist Dr. G. Paape appeared on his behalf. Previously, on November 13, 2012, staff presented petitioner with written notice of his rights at his upcoming disciplinary hearing, including his right to call witnesses and present documentary evidence in his defense. Petitioner signed a form "Notice of Discipline Hearing Before the (DHO)" wherein he indicated that he did not wish to call witnesses at his upcoming hearing. Id., Attachment 3, p. 10. According to the DHO, petitioner made the following statement at the hearing:
My history speaks for itself. I've never had any assaults in my record. I'm scared because of staff. I just seen Dr. Paape and the psychiatrist and was emotional. We had discussed several issues of my past. They [sic] were other inmates moving around. I was being harassed by that officer. He asked me to stop which I did. He told me to go back to medical. I asked to speak with a Lieutenant and he yelled at me to go to medical. I started walking toward the Lieutenant's Office, he yelled at me to stop and give him my ID. I didn't think I sl[a]pt it into his hand or did it forcefully.
Id., Attachment 3, pp. 1-2.
Ultimately, the DHO found petitioner committed the prohibited act of assaulting any person in violation of Code 224. The DHO based his findings on the reporting officer's statement, memoranda submitted by Lieutenant Cape and Senior Officer Bell (each respectively asserting that he witnessed petitioner "aggressively slap his ID into Officer Mulrooney's hand" and "slap his card into officer mulrooneys hand very forcibly"), Health Services Clinical Encounter forms for petitioner, Staff Injury Assessment and Follow-Up Form for Officer Mulrooney, and Petitioner's own statements to the investigator, the UDC, and the DHO. The ...