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Elliott v. Paul

United States District Court, D. Minnesota

November 14, 2018

Jacob Elliott, Petitioner,
v.
Warden David Paul, Respondent.

          Jacob Eilliott, Reg. No. 41959-424, FMC-Rochester, P.O. Box 4000, Rochester, MN 55903-4000, petitioner pro se

          Ana H. Voss / Ann M. Bildtsen / David W. Fuller, United States Attorney's Office, counsel for respondent

          REPORT AND RECOMMENDATION

          Katherine Menendez United States Magistrate Judge.

         This matter is before the Court on Jacob Elliott's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Pet., ECF No. 1.) Mr. Elliott challenges two prison disciplinary decisions from October and December of 2017 that resulted in the loss of certain privileges and the forfeiture of good-conduct time. For the reasons discussed below, the Court recommends that the Petitioner's Application for Habeas Corpus Relief be DENIED.

         I. Background

         Mr. Elliott is an inmate housed at the Federal Medical Center in Rochester, Minnesota (“FMC-Rochester”). He is serving a 20-year prison sentence for exploitation of a child and possession of child pornography. (Boldt Decl. ¶ 8, Ex. B at 2, ECF No. 15.) With the accrual of good-conduct time, Mr. Elliott is projected to be released on February 23, 2030. (Id.)

         Mr. Elliott has been disciplined twice since he has been in the custody of the United States Bureau of Prisons (“BOP”). (Boldt Decl. ¶ 9.) Specifically, he was reported to have violated prison rules in Incident Reports 30376422 and 3058341. (Id.) These Incident Reports led to the disciplinary decisions now at issue.

         BOP Discipline Procedures

         When a staff member at a BOP facility witnesses an inmate commit a prohibited act or reasonably believes that the inmate committed a violation, he or she prepares an incident report. (Boldt Decl. ¶ 3; id. ¶ 2, Ex. A - Program Statement 52709.09 (“Inmate Discipline Program”) § 541.5(a).) The inmate receives a copy of the incident report, usually within 24 hours. (See Inmate Discipline Process § 541.5(a).) The incident report is then forwarded to the appropriate Lieutenant in the prison, and the matter is investigated. (Id.) A supervisory level employee of the BOP (ordinarily a Lieutenant) is appointed as the investigating officer and should complete the investigation within 24 hours. (Id. § 541.5(b).)

         Once the investigation of the incident is complete, the investigating officer refers the issue to the Unit Discipline Committee (“UDC”) for an initial hearing. (Inmate Discipline Process § 541.7) The initial hearing ordinarily takes place within five days of the incident report being issued, but the Warden of the prison may approve a delay in that proceeding. (Id. § 541.7(c).) At the UDC hearing: the inmate can appear in person or electronically, or may waive his appearance, and the inmate can make a statement and present documentary evidence. (Id. § 541.7(d)-(e).) The UDC has three options at the initial hearing. It may: (1) find that the inmate committed the violation; (2) find that the inmate did not commit the prohibited act; or (3) refer the matter to a Discipline Hearing Officer (“DHO”) for further consideration. (Id. § 541.7(a)(1)-(3).) More serious disciplinary violations are referred to the DHO. (Id. § 541.7(a)(4).) If the UDC refers the matter to the DHO, the inmate must be advised of his rights in the DHO proceeding. (Id. § 541.7(g).) Once the UDC has reviewed an incident report, the inmate receives a written copy of the UDC's decision by the close of business on the next work day after the hearing. (Id. § 541.7(h).)

         Once a DHO referral is made, the DHO must be an “impartial decision maker who was not a victim, witness, investigatory, or otherwise significantly involved in the incident.” (Inmate Discipline Process § 541.8(b).) The inmate receives notice of the charges against him at least 24 hours before the DHO's hearing, though the inmate can waive that requirement, allowing the hearing to take place more quickly. (Id. § 541.8(c).) An inmate is allowed, upon request, to have a staff representative during the DHO hearing process. (Id. § 541.8(d).) The inmate can select the staff representative of his choice so long as that individual was not a victim, witness, investigator, or otherwise significantly involved in the incident. (Id.) The Warden will appoint a staff representative for the inmate if he is unable to adequately represent himself. (Id.) The staff representative: (1) can help the inmate understand the charges in the incident report and the potential consequences; (2) may speak with witnesses, obtain written statements, and otherwise help the inmate prepare evidence for the hearing; and (3) appear and assist the inmate during the hearing. (Id. § 541.8(d)(2).)

         At the DHO hearing, the inmate can appear in person or electronically, but he may also waive his right to appear. (Inmate Discipline Process § 541.8(e).) The inmate may make a statement and present evidence in his defense and may request witnesses to appear at the hearing. However, the DHO may refuse a request for witnesses if that testimony would jeopardize institutional security or be repetitive. (Id. § 541.8(f).) The DHO will determine whether: (1) the inmate committed the act alleged in the incident report; (2) he did not commit the prohibited act; or (3) the matter should be referred back for further investigation, review, and disposition. (Id. § 541.8(a)(1)-3).) The DHO must provide the inmate with a copy of any written decision. (Id. § 541.8(h).) The written report documents: (1) whether the inmate was advised of rights during the DHO process; (2) what evidence the DHO relied on in reaching its decision; (3) the DHO's decision; (4) the sanctions imposed; and (5) the reasons for the sanctions. (Id. § 541.8(h)(1)-(5).)

         If it appears to BOP staff that an inmate is mentally ill during the discipline process, the matter is referred to a mental health professional who determines whether the inmate is responsible for his conduct and is competent to participate in the proceedings. (Inmate Discipline Process § 541.6.) The UDC or the DHO then decides whether the inmate can understand the nature of the disciplinary proceedings and help in his own defense and whether he was unable to appreciate the nature and quality, or wrongfulness of the act. (Id. § 541.6(a)-(b).) These decisions are based on evidence provided, including evidence presented by mental health staff. (Id.)

         Incident Report 3037642

         Mr. Elliott challenges the discipline resulting from two incident reports. The first incident report alleges that Mr. Elliott violated a prison rule prohibiting tattooing and self-mutilation. (Boldt Decl. ¶ 10; id., Ex. D (“IR 3037642”).) On September 26, 2017, Mr. Elliott approached a nursing station in the behavioral health unit at FMC-Rochester and asked “what to do when you know someone may have hurt themselves.” (IR 3037642 at 1.) Mr. Elliott was sent to the medical treatment room. He stated that he cut his arm with a razor and wrapped it in toilet paper to stop the bleeding. When the toilet paper covering his arm was removed, there were multiple lacerations of various lengths on his upper and lower left arm. Mr. Elliott informed staff that he cut his abdomen as well, lifted up his shirt, and revealed a series of lacerations forming a triangle. (IR 3037642 at 1, 4, 6.)

         Lieutenant Hare investigated Incident Report 3037642, and interviewed Mr. Elliott. He advised Mr. Elliott that he did not have to discuss the incident but that his silence could be used to draw an inference against him. (IR 3037642 at 2.) Mr. Elliott acknowledged that he was advised of his rights and cooperated with the interview. Mr. Elliott stated: “It is something I have done in the past also. I will try and talk with someone if I want to do it again before it happens.” (Id.) Mr. Elliott also told a physician's assistant who treated him that “the pattern of lacerations [is] meaningful to him, but ... it is a long story and [he] [did] not want to discuss it.” (Id. at 6.) The investigation was completed by Lieutenant Hare on September 29, 2017. (Id. at 2.)

         Due to mental health concerns, FMC-Rochester staff decided to conduct a competency evaluation. On October 2, 2017, a BOP psychologist determined that Mr. Elliot was competent to understand the disciplinary proceedings and was responsible for his conduct at the time of the incident. (Boldt Decl. ¶ 12, Ex. E (“Competency Eval.”).) The psychologist's report states that Mr. Elliott understood what he was doing when he cut himself, that he was attempting to punish himself, and that he intended to plead guilty and accept punishment. (Competency Eval. at 2.) Mr. Elliott stated: “I take full responsibility for my actions.” (Id.; see also IR 3037642 at 1 ¶ 17.)

         BOP records indicate that Mr. Elliott was provided notice of the charge (a copy of Incident Report 3037642) around 1:00 p.m. on September 26, 2017. (IR 3037642 at 1; see also Boldt Decl. ¶ 14, Ex. H (“First DHO Report”) at 1 ¶ I.A.) On October 3, 2017, a UDC hearing was conducted. (IR 3037642 at 1.) Mr. Elliott did not request a witness to give a statement about the incident. (Id. at 2.) The UDC determined that the severity of the offense and the potential consequences warranted referral of the matter to the DHO for further hearing. (Id. at 1.) The UDC recommended forfeiture of 27 days of good conduct time and 30 days loss of commissary privileges. (Id.)

         Mr. Elliott was advised of his rights for the DHO proceeding on October 3, 2017. (First DHO Report at 1 ¶ I.C.) He waived his right to have a staff representative present at the hearing. (First DHO Report at 1 ¶ II.A.) He also waived his right to present witnesses and documentary evidence. (First DHO Report at 1 ¶ III.C.1.) The DHO hearing was held on October 5, 2017, during which Mr. Elliott admitted his conduct. (First DHO report at 1 ¶¶ I.B., III.A.) Based on that admission and the other evidence in the record, the DHO found that Mr. Elliott committed the act. (First DHO Report at 1 ¶ IV.) Mr. Elliott's punishment was: (1) disallowance of 27 days good-conduct time; (2) 30 days of commissary restrictions; and (3) 30 days of email restrictions. (First DHO Report at 2 ¶ VI; Boldt Decl. ¶ 16.) The DHO found that these sanctions were appropriate because Mr. Elliott's actions interfered with BOP's ability to maintain a safe and sterile environment for other inmates and staff. The DHO also found that the loss of good conduct time was mandatory for a PLRA inmate[1] and the loss of commissary and email privileges would deter further misconduct. (DHO Report at 3 ¶ 7.)

         Incident Report 3058341

         Mr. Elliott was also disciplined for violating BOP rules prohibiting the use of drugs and alcohol, as documented in Incident Report 3058341. (Boldt Decl., Ex. I (“IR 3058341”).) On November 8, 2017, Mr. Elliott provided a urine sample to Correctional Officer Schmidt. (IR 3058341 at 1.) Lab results were returned on November 17th and revealed that the sample tested positive for marijuana metabolite. (Id.) A pharmacist reviewed the relevant medical records and confirmed that Mr. Elliott did not receive prescribed medications that would have caused a positive test. (Id.) The Incident Report was delivered to Mr. Elliott on November 20, 2017. (Id.)

         Lieutenant Wieczorek was assigned as the investigator for the incident, and advised Mr. Elliott of his rights. (IR 3058341 at 2.) On November 28, 2017, the UDC held a hearing and referred the matter to the DHO for further hearing. (Id. at 1.) The UDC made this decision based on the severity of the offense and the applicable sanctions. (Id.) The UDC recommended forfeiture of 41 ...


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