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Powell v. United States

United States District Court, D. Minnesota

April 24, 2018

Ali Powell, Petitioner,
v.
United States of America, Respondent.

          Ali Powell, Reg. No. 13361-089 pro se petitioner,

          Ana H. Voss, Ann M. Bildtsen, David W. Fuller

          REPORT AND RECOMMENDATION

          Katherine Menendez, United States Magistrate Judge.

         Now before the Court is petitioner Ali Powell's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Pet., ECF No. 1. Mr. Powell is currently incarcerated in the Federal Prison Camp in Duluth, Minnesota. Id. at 2. He argues that his right to due process of law was violated when the Bureau of Prisons reduced his time off for good behavior after finding that he violated prison rules. Id. at 8-13. Because the procedures provided by the prison satisfied the due process standard applicable to prison disciplinary hearings, the Court recommends Mr. Powell's petition be denied.

         BACKGROUND

         In July 2015, Mr. Powell's prison camp dormitory room was subjected to a random search. Id. at 8. According to an incident report, the search produced ten ounces of loose tobacco and “a cleaning spray bottle with a brown liquid inside.” Id. The liquid tested positive for alcohol. Id. All contraband was found in Mr. Powell's secured locker. Id. He was charged with violating prison rules for possession of tobacco and of alcohol and he acknowledges that the tobacco was his. Id. at 8, 10.

         Mr. Powell received a written incident report and had a disciplinary hearing one month later. Id. at 8. Both before and during the hearing, Mr. Powell asserted that the bottle found in his locker contained “a chemical from Safety called Formula 66, ” which he received to clean floors and garbage cans. Id. at 8-9. At the hearing, the disciplinary hearing officer (“DHO”) considered the statement of Mr. Powell's representative that the liquid was cleaner and not alcohol; the incident report describing the search, the discovery of the contraband, and the testing of the liquid for alcohol content; the photographs taken during the search; an information sheet regarding Formula 66; and Mr. Powell's own repeated statements that the liquid he had was a cleaner. Pet. Ex B at 1-2. In spite of Mr. Powell's defense, the DHO concluded that the greater weight of the evidence supported a finding that Mr. Powell had violated prison rules by possessing both alcohol and tobacco, and imposed sanctions for both violations. Id. at 2. For possessing alcohol, Mr. Powell lost 41 days of good time and 120 days each of commissary, phone, and visiting privileges. Id. For possessing tobacco, Mr. Powell lost 14 days of good time and 90 days each of commissary and phone privileges. Id.

         After the hearing, Mr. Powell attempted to appeal the result. Pet. at 10, 12-13. Mr. Powell alleges that his appeals were deemed untimely as a result of prison staff holding his mail back or keeping paperwork longer than was necessary in an effort to obstruct his appeals. Id. at 12-13. Ultimately, he requests expungement of the incident report, despite his admission of tobacco possession in violation of prison rules. Id. at 13.

         ANALYSIS

         The government concedes that both venue and jurisdiction are proper here: Mr. Powell is currently incarcerated within the District of Minnesota and his petition under § 2241 challenges the results of a disciplinary hearing impacting the duration of his confinement. See Resp. at 9, ECF No. 5. The Court agrees.

         An inmate does not lose the right to due process of law simply because he is incarcerated. But “[p]rison 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, 94 S.Ct. 2963, 2975 (1974). The Supreme Court “has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interest, ” and applied that reasoning to deprivation of good time in response to a disciplinary proceeding where good time was provided for by statute. Id. at 557, 94 S.Ct. at 2975. Moreover, the Supreme Court has articulated a test for determining whether an inmate received adequate due process after loss of time off for good behavior pursuant to a disciplinary decision: inmates are entitled to “(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773 (1985); see also Flowers v. Anderson, 661 F.3d 977, 980 (8th Cir. 2011) (applying the Hill test).

         Mr. Powell received the due process required under Hill. The exhibits to his petition include the written incident report setting forth the alleged violations, and his petition refers specifically to his receipt of the incident report. Pet. Ex. 6; Pet. at 8; see also Gluc Decl., Ex. D at 2, ECF No. 7. Moreover, Mr. Powell does not contest that he received a disciplinary hearing, nor does he argue that the factfinder failed to provide a written statement of the evidence relied upon and the reasons for the decision. Part of that written statement is also attached to Mr. Powell's petition as an exhibit. Pet. Ex. B; see also Gluc Decl., Ex. G.

         The only Hill factor Mr. Powell specifically contests is his opportunity to present evidence. See Pet. at 9, 11. Mr. Powell asserts that the Bureau of Prisons unconstitutionally limited his ability to present evidence in his defense. Id. at 11. He argues that he asked for a test of the liquid in the spray bottle found in his possession, but his request was rejected. Id. However, Mr. Powell provides no support for the assertion that this specific test was required.

         The DHO considered Mr. Powell's statement that the liquid was Formula 66 from the safety department. Gluc Decl., Ex. G at 2. He further considered photographs from the room search, which depicted loose tobacco, the spray bottle, and the screen of an Alco-Sensor 3 reading at .046. Id.; Gluc Decl., Ex. D at 3-4. He further considered an information sheet provided by the safety department which showed “no alcohol or any evidence the chemical would test positive for alcohol.” Gluc Decl., Ex. G at 2; Gluc Decl., Ex. D at 5-8. While Mr. Powell is correct that Hill requires he be allowed to present witnesses and documentary evidence in his defense where possible, it does not follow that the prison is required to provide Mr. Powell with chemical testing services or that the prison must otherwise produce documentary evidence for him. See, e.g., Spence v. ...


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