United States District Court, D. Minnesota
Powell, Reg. No. 13361-089 pro se petitioner,
Voss, Ann M. Bildtsen, David W. Fuller
REPORT AND RECOMMENDATION
Katherine Menendez, United States Magistrate Judge.
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.
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.
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
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.
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.
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).
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.
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.
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. ...