Opinion
Civil Action No. 4:03-CV-0772-G
November 10, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Hubert Earl Lawson, Reg. No. 33347-077, is a federal prisoner who is currently incarcerated in the Federal Medical Center in Fort Worth, Texas.
The Respondent is L.E. Fleming, Warden of the Federal Medical Center in Fort Worth, Texas.
C. PROCEDURAL HISTORY
Lawson was convicted in the United States District Court, Northern District of Texas, Dallas Division, in Case No. 3:99-CR-295-G (01) of two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Declaration of Daniel R. Severson at ¶¶ 2 3 and Attachment 2.) He was sentenced on February 15, 2000, to a term of imprisonment of one-hundred and twenty months on Count 1 and a term of forty-two months on Count 2, the sentences to run consecutively. (Id.) Prior to his confinement at Fort Worth, Lawson was confined at various federal correctional institutions, including the federal correctional institution (FCI) in Seagoville, Texas, and the FCI in Texarkana, Texas. (Id. at ¶ 4 and Attachment 3.) At FCI Texarkana, Lawson was charged by incident report dated June 24, 2002, with the institutional offense of Disruptive Conduct, Code 199, Most Similar to Planning/Soliciting an Assault of Another, Code 101A. (Id. at ¶¶ 5 6 and Attachments 4 5.) The following description of the incident was set forth in a memorandum prepared by Special Investigative Supervisor (SIS) Lieutenant J. Heintzleman and attached to the incident report.
An SIS investigation completed on 06-24-02 has determined that inmate Lawson, 33347-077, initiated a plan to carry out an assault upon another inmate, and solicited the assistance of another inmate by offering to pay other inmate(s) to carry out this assault. The following statements and information were obtained during this investigation.
On 05-24-02, SIS staff were advised that inmate Billy Turner, 33089-077, had attempted to contact an outside law enforcement agency for the purpose of arranging a trap for another inmate who was allegedly attempting to have inmate Turner assaulted. During subsequent SIS interviews, Turner stated he had learned that inmate Lawson, 33347-077, had solicited the aid of inmate Fields, 84561-012, in carrying out an assault against him. Turner admitted that upon learning of this, he did attempt to contact an outside law enforcement agency for the purpose of setting up a trap against Lawson with the intent of seeking a sentence reduction for his cooperation. Turner admitted that he had successfully done this approximately three years ago, while he and Lawson were both housed at the FCI Seagoville Jail Unit. That information was confirmed during telephonic contact with Agent D. Molder, of the Alcohol, Tobacco, Firearms Agency, on 05-30-02.
During subsequent SIS interviews with inmate Fields, he stated that Lawson had approached him and asked if he (Fields) knew anyone who would be interested in "taking care of a problem for him." Fields stated that as their discussion continued, Lawson stated that he wanted another inmate to be assaulted, that he would pay for it to be done, that he wanted that inmate to be "hurt real bad," and Lawson finally identified this other inmate to Fields as being Turner, 33089-077.
Fields stated that Lawson told him that Turner had "set me up" in a deal at FCI Seagoville, which resulted in Turner getting a sentence reduction, while he (Lawson) got transferred to a USP. Fields stated that Lawson also claimed that he had paid a Mexican inmate to assault Turner because of that and that staff had never found out. Fields admitted that he agreed to "Make arrangements for assaulting Turner," even though Lawson had not said how much money he was offering. Fields then admitted that he agreed to this, because he had also been at FCI Seagoville during the same time. Fields stated he knew that Turner had been assaulted by a Mexican inmate, whose name sounded like "Toscano," because "Toscano" had been moved into his housing unit afterwards and had been bragging about assaulting Turner. Fields also knew a few details about Turner getting a sentence reduction after setting up another inmate. Fields did not know, however, that Lawson was the inmate who was set up by Turner, nor did Fields know that Lawson had no part in the assault on Turner. The SIS report from FCI Seagoville showed that Mexican inmate named Liscano had assaulted Turner, there had been suspicion (unverified) that another inmate named Valdez had paid Liscano to assault Turner; however, Lawson's name was never noted in that report. Fields stated that he then planned to arrange a similar trap of getting a sentence reduction for himself. Fields stated he was still in the process of making such contact when staff learned of this incident, at which time he was placed in SHU. Fields also provided a written statement describing Lawson's statements and efforts to have Turner assaulted.
During subsequent SIS interviews with Lawson, he eventually admitted he had approached other inmates about getting someone to assault Turner, but he refused to identify these inmates. Lawson then claimed that since his arrival here, Turner had been harassing and threatening him on a regular basis. Lawson also claimed that he had been told by other inmates (whom he again refused to identify) that Turner had been planning to pay someone to assault him. Lawson admitted that he had not informed any staff of his problems with Turner, claiming that no one would believe him, so he was therefore justified in trying to have Turner assaulted first.
On 06-06-02, during an interview with Dr. Morgan, Chief Psychologist, Lawson again claimed to have "an enemy" on the compound, and again admitted that he had approached at least one other inmate to ask, "If he knew anyone who would take care of a problem for me."
It is therefore concluded that inmate Lawson did approach at least one inmate, Fields, with an offer to pay for an assault to be carried out upon inmate Turner. It was concluded that Lawson committed this act with revenge as a motive. It was concluded that Lawson further coerced Fields by claiming to have previously paid another inmate to assault Turner and by claiming that staff at that facility had never become aware of his involvement, thereby claiming both success and anonymity in the commission of a prohibited act. Planning and soliciting an assault is a serious threat, not only to the intended target, but to staff who must respond to such incidents. Had this assault been carried out, the results may have had even more serious consequences, given the fact that inmate Turner is 56 years old with health problems related to his age, plus the fact that he had been seriously injured during that previous assault incident. (Id. at Attachment 5, pp. 37-38.)
Lawson received a copy of the incident report on the June 24, 2002. (Id.) Thereafter, he was advised of his rights in connection with the disciplinary proceedings on June 26, 2002, and he appeared for a disciplinary hearing before a disciplinary hearing officer on June 27, 2002. (Id.) At the hearing, Lawson requested a staff representative. He also identified three witnesses he wished to call to testify to the fact that Turner was "after" him, and he gave the following statement:
This problem followed me from Seagoville. I have paperwork that proves that I have been separated from Inmate Turner. I did not solicit assistance to assault Turner. Turner and I exchanged words while getting ice cream in the dining room. I spoke with another inmate, Fields, in a slang manner asking him (Fields) if he knew someone to take care of him (Turner). I did not offer money for compensation. I'm sorry if it came across as soliciting. I was just talking. (Id. at Attachment 5, p. 24.)
After reviewing all the evidence, including the incident report and investigation, the memorandum by reporting officer J. Heintzleman, confidential information from various informants, Lawson's own statement, and the testimony of Lawson's witnesses, the hearing officer found Lawson guilty of the offense and assessed punishment of disallowance of 75% good conduct time and 45 days of disciplinary segregation, and he recommended a disciplinary transfer. (Id. at Attachment 5, pp. 24-46.) Lawson received a copy of the "Discipline Hearing Officer Report" on July 2, 2002. (Id. at Attachment 5, p. 32.)
Lawson then pursued his administrative remedies, challenging the disciplinary proceeding on the grounds raised in this federal petition, as well as others. (Id. at Attachments 7 8.) He first appealed the hearing officer's decision to the Regional Director, who denied the appeal on December 10, 2002. (Id. at Attachment 7, p. 51.) Lawson then appealed that denial to the Board of National Inmate Appeals. (Id. at Attachment 8, p. 79.) On February 21, 2003, the Administrator of the National Inmate Appeals denied the appeal. (Id.)
Thereafter, Lawson filed the instant habeas corpus petition in this court. The respondent has filed a motion for summary judgment with attached affidavits and documentary exhibits, to which Lawson has not replied.
Lawson originally filed a "Writ of Habeas Corpus" that was not on the proper form. Pursuant to an order dated July 14, 2003, he cured the deficiency by filing his habeas petition on the proper form. He nevertheless refers to his "original Habeas Corpus" in his properly filed petition.
D. ISSUES
Lawson seeks restoration of his lost good conduct time and expungement of the incident report from his record on the following grounds:
1. The Bureau of Prisons (the Bureau) disregarded his safety and well being by transferring him to FCI Texarkana when they were aware that he had an "enemy" at that institution; and
2. After Turner began threatening him, he advised prison staff of the problem, but prison staff failed to do anything about it. (Petition at 7.)
The government construes Lawson's federal petition as raising additional claims. Those claims were raised by Lawson in the prison administrative appeals process, however they were not specifically asserted in his original petition or his form petition filed herein and are not addressed.
E. DISCUSSION
In support of his first claim, Lawson asserts that prison authorities did not follow proper administrative procedures under the Bureau's Program Statement 5180.04, dealing with central inmate monitoring cases, when it transferred him to FCI Texarkana. (Original Petition at 4.) See also 28 C.F.R. § 524.70-524.76. According to Lawson, prior to his transfer to FCI Texarkana the Bureau "placed `Central Inmate Monitoring' on him and Turner." He contends FCI Texarkana should have reviewed his status and prevented physical contact between the two. (Id. at 2.) He directs the court's attention to sections 7(f) and 8(c) of Program Statement 5180.04. Section 7 deals with classification of such cases according to assignment. Subsection (f) provides:
Lawson did not provide a copy of P.S. 5180.04 with his petition, however the BOP's program statements are available on the Internet. U.S. Department of Justice, Federal Bureau of Prisons/ Freedom of Information Act/Policy/BOP Program Statements (policies), available at http://www.bop.gov (last modified Aug. 16, 1996).
(f) Separation. Inmates who may not be confined in the same institution (unless the institution has the ability to prevent any physical contact between the separatees) with other specified individuals who are presently housed in federal custody or who may come into federal custody in the future. Factors to consider in classifying an individual to this assignment include, but are not limited to, testimony provided by or about an individual (in open court, to a grand jury, etc.), and whether the inmate has exhibited aggressive or intimidating behavior towards other specific individuals, either in the community or within the institution. This assignment also includes those inmates who have provided authorities with information concerning the unauthorized or illegal activities of others. This assignment may also include inmates from whom there is no identifiable threat, but who are to be separated from others at the request of the Federal Judiciary or U.S. Attorneys.
Section 8(c) requires that the Warden of the correctional institution or his designee review central inmate monitoring classification decisions for all separation assignments.
Lawson argues that had the prison staff followed proper procedures, it would have determined that he needed to be separated from Turner and the disciplinary incident would never have occurred. (Original Petition at 4.) He urges that he has an "expectant right for," and "due process demands that," the Bureau follow its own administrative procedures. (Original Petition at 3.) Lawson, however, cites to no direct authority, and none has been found, for the proposition that Program Statement 5180.04, regarding the classification of inmates under the central inmate monitoring system and the internal procedures relevant to a particular classification, creates an interest protected by the Due Process Clause. See, e.g., Hewitt v. Helms, 459 U.S. 460, 470-71 (1983). Generally, the failure of prison officials to follow their own internal policies alone is insufficient to make out a due process violation. See Myers v. Klevenhagen 97 F.3d 91, 94 (5th Cir. 1996); Giovanni v. Lynn, 48 F.3d 908, 913 (5th Cir. 1995); Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994).
In support of his assertion, Lawson cites to United States ex rel. Accardi v. Shaughnessey, 347 U.S. 260, 268 (1954) (holding failure of Board of Immigration Appeals to exercise its discretion in determining whether application for suspension of deportation should be granted, via a hearing, as prescribed by regulations of Attorney General, is denial of due process), and United States v. Nixon, 418 U.S. 683, 695-96 (1974) (regulations of Attorney General have force of law).
In the context of prison disciplinary proceedings resulting in the loss of good time credits, an inmate is entitled to minimum due process requirements, which include: (1) advanced written notice of the alleged violation; (2) an opportunity to call witnesses and present documentary evidence in his defense; (3) a written statement as to the evidence relied upon and reasons for the disciplinary action; and (4) "some evidence" in support of the hearing officer's decision. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-55 (1986); Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974). The record reflects that Lawson received all the due process afforded him during the disciplinary proceedings, and he does not argue otherwise.
Moreover, Lawson has failed to show that his transfer to FCI Texarkana violated prison policy. He provides no proof that he and Turner were, in fact, classified for "separation" at FCI Seagoville. Further, the record reveals that the hearing officer was unable to verify the "separation" status between Turner and Lawson and found that the staff at FCI Seagoville had no reason to initiate separation status between the two. (Declaration of Daniel R. Severson at Attachment 4, p. 30.) Similarly, the Administrator of the National Inmate Appeals found there was no evidence to support Lawson's contention that staff "negligence" resulted in his transfer to FCI Texarkana. (Id. at Attachment 8, p. 79.)
Apparently, Turner also believed that the staff at FCI Seagoville had entered a "Separation" between him and Lawson. (Attachment 5, p. 28.) However, the "Discipline Hearing Officer Report" specifically states:
Turner's central file contains the SIS Report on the assault incident [that occurred in FCI Seagoville]. The report clearly shows that Liscano was charged with that assault, and had been suspected of being paid to do so by another inmate named Valdez, (the other Mexican inmate Turner had referred to). Turner and Liscano are listed on Separation status, but Valdez is not, nor is Lawson. There was no mention of Lawson in that SIS report. (Attachment 5, p. 60.)
The record also fails to support Lawson's claim that he advised prison staff, to no avail, that Turner was threatening him. During the investigation of the disciplinary charge, Lawson admitted that he had not reported any threats or harassment by Turner because "he did not think any staff would believe him." (Id. at Attachment 5, p. 60.)
RECOMMENDATION
Based on the foregoing discussion, it is recommended that respondent's motion for summary judgment be granted to the extent that this petition for writ of habeas corpus be denied.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until December 1, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 1, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.