United States District Court, D. Connecticut
ORDER DENYING PETITION FOR WRIT OF HABEAS
Jeffrey Alker Meyer United States District Judge.
time this petition was filed, petitioner Gregory Walker was a
federal prison inmate at FCI Danbury. He filed this petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241
challenging a disciplinary sanction he received for allegedly
assaulting another inmate. Petitioner contends that prison
officials violated his constitutional due process rights and
Sixth Amendment confrontation rights in connection with his
disciplinary hearing. He accordingly requests that the Court
restore his 27 days of lost “good time” credit
and expunge the incident report from his record. Because I
conclude that petitioner's disciplinary hearing did not
violate petitioner's constitutional rights, I will deny
August 15, 2015, petitioner allegedly punched another inmate,
Dale Hawn, following a verbal altercation over Hawn's
cooperation with staff regarding illegal activity at the
prison. Doc. #11-2 at 12. A Special Investigative Services
(SIS) Technician conducted an investigation of the incident
and gathered evidence, including an interview with Hawn two
days after the incident, as well as interviews with
petitioner and other inmate eyewitness. Id. at 27.
The investigator reviewed documentary evidence, including
medical assessments and photographs of petitioner and Hawn,
an inculpatory “drop note” from Hawn dated August
25, 2015, and an exculpatory drop note and letter allegedly
from Hawn dated September 6, 2015. Id. at 27-28. The
investigation was completed on September 13,
2015. Id. at 24. The SIS technician
summarized the results of the investigation in an
“Inmate Investigative Report, ” which recommended
that petitioner be charged with assault. Id. at 28.
officials provided petitioner with an incident report
detailing the allegations on September 13, 2015. Id.
at 12. In compliance with 28 C.F.R. § 541.7, the Unit
Discipline Committee (UDC) reviewed the incident report and
referred the matter to the Disciplinary Hearing Officer (DHO)
for further action. Ibid. In its review, the UDC
considered a written statement from petitioner denying the
charges and requesting that the victim serve as a witness.
Id. at 13. Two days later, petitioner was provided
with a notice of disciplinary hearing before the DHO.
Id. at 16. Petitioner was advised of his rights,
including the right to have a staff member represent him, to
call witnesses, and to present documentary evidence on his
behalf “provided institutional safety would not be
jeopardized.” Id. at 15. Petitioner declined
to have a staff member represent him, but requested that Hawn
serve as a witness to testify that petitioner “did not
punch him.” Id. at 16.
October 2, 2015, the DHO conducted petitioner's
disciplinary hearing. Doc. #2 at 34. At the hearing,
petitioner again denied the charge and requested that Hawn
appear as a witness; petitioner did not present any
additional evidence or testimony on his behalf. Doc. #11-2 at
7. The DHO declined to call Hawn as a witness, because he was
the inmate involved in the assault. Ibid. However,
the DHO interviewed Hawn shortly before the hearing. Doc. #2
at 34 (noting that the interview occurred at 6:40 p.m. and
the hearing occurred at 6:45 p.m.). The initial DHO report
did not describe the contents of this interview, but an
amended DHO report stated that Hawn informed the DHO that
petitioner “argued with him, called him a rat, and when
he went to walk away he punched him.” Ibid.
found petitioner guilty of assault and imposed a sanction of
27 days loss of good conduct time, 30 days of disciplinary
segregation, and 180 days loss of commissary privileges.
Id. at 36. In addition to the incident report and
Hawn's pre-hearing statement, the DHO relied on the
following evidence in making his decision: (1) medical
assessments of Hawn and petitioner taken about two weeks
after the incident; (2) photographs of Hawn and petitioner
taken almost a month after the incident; (3) the drop note
dated August 25, 2015, from Hawn to the investigator stating
that petitioner assaulted him; (4) the SIS investigative
report; and (5) a letter from Hawn claiming that petitioner
did not punch him. Doc. #11-2 at 9. The DHO report
explaining the basis for the decision was delivered to
petitioner shortly after the hearing.
appealed the DHO's decision, first to the Regional
Director of the Bureau of Prisons and then to the Central
Office. Doc. #11-2 at 30-55. The first appeal was denied, and
petitioner never received a response to his Central Office
appeal within the time frame allotted by BOP regulations.
Under 28 C.F.R. § 542.18, petitioner may treat the lack
of response to this appeal as a denial. Therefore, petitioner
properly exhausted his administrative remedies before filing
this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. His petition seeks to have
his 27 days good time restored and to have the incident
report expunged from his record.
prisoner may challenge prison disciplinary sanctions,
including loss of good time credits, by means of a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
See Carmona v. U.S. Bureau of Prisons, 243 F.3d 629,
632 (2d Cir. 2001). The loss of good time credits as
punishment for prison disciplinary offenses implicates a
liberty interest protected by the Fourteenth Amendment.
See Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004)
(citing Wolff v. McDonnell, 418 U.S. 539, 555-56
(1974)). Accordingly, prisoners must be afforded basic due
process protections before such a sanction can be imposed. An
inmate facing disciplinary action must be given
“advance written notice of the charges against him; a
hearing affording him a reasonable opportunity to call
witnesses and present documentary evidence; a fair and
impartial hearing officer; and a written statement of the
disposition, including the evidence relied upon and the
reasons for the disciplinary actions taken.”
Sira, 380 F.3d at 69 (citing Wolff, 418
U.S. at 563-67).
claims that respondent violated his constitutional rights by:
(1) failing to serve his incident report within 24 hours of
staff becoming aware of his alleged involvement in the
assault; (2) denying his request to call Hawn as a witness;
and (3) finding him guilty on insufficient evidence. For the
reasons stated below, I conclude that none of these arguments
of incident report
first contends that respondent violated federal regulations
by failing to deliver petitioner's incident report until
29 days after the purported assault. A federal regulation
states that prisoners “will ordinarily receive the
incident report within 24 hours of staff becoming aware of
your involvement in the incident.” 28 C.F.R. §
541.5(a). Petitioner avers that the failure to abide by this
regulation constituted a violation of his due process rights.
But even if petitioner is correct that the BOP violated this
regulation, the “failure to provide an inmate with an
[incident report] within 24 hours of an incident does not
violate due process.” Brennan v. United
States, 646 F. App'x 662, 667 (10th Cir. 2016);
Jacques v. Bureau of Prisons, 632 F. App'x 225,
226 (5th Cir. 2016) (same); Wallace v. Fed. Det.
Ctr., 528 F. App'x 160, 162-63 (3d Cir. 2013)
(same). So long as petitioner was provided the minimum due
process described by the Supreme Court in Wolff, the
delay in providing the incident report does not violate due
received the incident report more than two weeks before the
DHO hearing, which is well beyond the 24-hour notice required
by Wolff and ample time for him to prepare for the
hearing. See Rodriguez v. Lindsay, 498 F. App'x
70, 71 (2d Cir. 2012) (noting that prisoners are
“constitutionally entitled only to the process outlined
in Wolff” and that “Wolff's
relevant 24- hour notice period does not run from the
perpetration of the alleged incident, but rather works
backward from the beginning of the ...