United States District Court, D. Oregon
OPINION AND ORDER
Aiken, United States District Judge.
an inmate at the Federal Correctional Institution in
Sheridan, Oregon (FCI Sheridan), filed suit pursuant to 28
U.S.C. § 2241. He alleges violations of his due process
rights arising from a disciplinary hearing that resulted in
the loss of good time credits.
reasons set forth below, the petition is denied.
November 28, 2013, petitioner was charged with prison code
violations of stealing, possession of unauthorized items, and
being in an unauthorized area. These charges arose after
petitioner allegedly moved a microwave oven from the Navajo B
housing unit to the Navajo A housing unit at FCI Phoenix;
video surveillance showed petitioner carrying the microwave
up the stairs in Navajo A, where he was housed. De Vore Decl.
¶ 5 (ECF No. 14-1). The same day, petitioner was also
charged with possession of a weapon after Correctional
Officer (CO) Boland found a utility razor in a radio case
during an inventory of petitioner's property.
Id. ¶ 6.
December 10, 2013, petitioner appeared at a disciplinary
hearing before Disciplinary Hearing Officer (DHO) De Vore.
Id. ¶ 9 & Art. 2. Petitioner acknowledged
that he had received copies of both incident reports and
indicated that he understood his rights and was ready to
proceed. Id. Art. 2 at 15, 21. Petitioner relied on
his written statements in addition to making a statement at
the hearing. Id.
respect to the weapons charge, petitioner maintained that the
utility blade and case were not found on his person, he had
no notice utility blades were considered weapons, and staff
provides utility blades to inmates to perform certain tasks.
Id. Art. 2 at 19. Petitioner further argued that the
radio case "was used to hold 'trinkets' in the
supply closet." De Vore Decl. Art. 2 at 15. Petitioner
had requested CO Boland's appearance at his hearing;
however, CO Boland was no longer employed with the Bureau of
Prisons and was unavailable. Id. Att. 2 at 16.
Instead, DHO De Vore relied on CO Boland's statements in
the incident report and found that it adequately represented
CO Boland's knowledge of the incident. Id.
Further, petitioner waived calling witnesses at the hearing.
respect to the theft charges, petitioner stated that inmates
asked him to bring the microwave oven to other inmates in
Navajo A who could fix it. De Vore Decl. Art. 2 at 25. He
conceded that he possessed the microwave and carried it up
the stairs in Navajo A, but he denied removing the microwave
from Navajo B. Id. Att. 2 at 21, 25. Petitioner also
admitted that he should have asked an officer for permission
before taking possession of the microwave. Id.
Vore found that petitioner had committed the prohibited acts
of Possession of a Hazardous Tool and Possession of Stolen
Property. Id. ¶ 10, 12. DHO De Vore found that
petitioner provided no evidence that he was given the blade
by staff or was allowed to keep utility blades in his
possession without staff supervision. Id. ¶ 10.
DHO De Vore also noted that Program Statement 5270.09, Inmate
Discipline Program, describes and defines prohibited objects,
including "a sharpened instrument, " a "knife,
" and objects likely "to serve as weapons capable
of doing serious bodily harm to others." De Vore Decl.
¶ 10. DHO De Vore further found that petitioner admitted
to possessing the microwave without staff permission.
Id. ¶ 12. Petitioner was sanctioned to a loss
of 41 days Good Conduct Time and two months of telephone
privileges on the hazardous tool charge and a loss of 27 days
Good Conduct Time and two months of commissary privileges on
the stolen property charge. Id. Att. 2 at 17, 23.
alleges that the disciplinary proceeding violated his rights
to due process because he was not provided with adequate
notice of the charges against him and was denied the
opportunity to call witnesses on his behalf. Respondent
maintains that the proceeding complied with relevant due
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). Instead, due
process requirements are met if the inmate receives: 1) a
written statement at least twenty-four hours before the
disciplinary hearing that includes the charges and a
description of the evidence against the prisoner; 2) an
opportunity to present documentary evidence and call
witnesses; 3) legal assistance where the charges are complex
or the inmate is illiterate; and 4) a written statement by
the factfinders detailing the evidence relied upon and the
reasons for the disciplinary action. Id. at 563-70;
see also Superintendent v. Hill, 472 U.S. 445, 455
(1985) ("We hold that the requirements of due process
are satisfied if some evidence supports the decision by the
prison disciplinary board to revoke good time
first argues that he did not receive adequate notice of the
charges against him, because DHO De Vore found that he had
committed violations different from those charged in the
incident reports. Pet'r Mem. at 5 (ECF No. 41). In
Wolff, the Supreme Court explained, "Part of
the function of notice [of the claimed violation] is to give
the charged party a chance to marshal the facts in his
defense and to clarify what the charges are."
Wolff 418 U.S. at 564. Here, the incident reports
"described the factual situation that was the basis for
the finding of guilt of possession of contraband and alerted
[petitioner] that he would be charged with possessing
something he did not own" and with a prohibited object.
Bostic v. Carlson, 884 F.2d 1267, 1270-71 (9th Cir.
1989), overruled on other grounds by Nettles v.
Grounds, 830 F.3d 922 (9th Cir. 2016). In other words,
the incident reports provided petitioner with adequate notice
of the facts underlying the charges against him and allowed
him to prepare a defense.
a DHO may find that an inmate "committed the prohibited
act(s) charged and/or a similar prohibited act(s) as
described in the incident report." 28 C.F.R. §
541.8(a)(1). The regulation does not require "advance
notice" in order to find that an inmate committed
"prohibited acts" similar to those charged in an
incident report. Finally, the violations petitioner committed
were of the same or lesser severity than the charges in the
incident reports. De Vore Decl. ¶ 13. Thus, ...