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Marshall v. Laird

United States District Court, Tenth Circuit

June 25, 2013

LaRON MARSHALL, Petitioner,
PAUL LAIRD, Regional Director, Respondent.


SAM A. CROW, Senior District Judge.

This petition for writ of mandamus was filed pursuant to 28 U.S.C. § 1651 by an inmate of the United States Penitentiary, Administrative Maximum Prison, Florence, Colorado ("ADX"). The sole defendant, Paul Laird, is described as the Regional Director for the North Central Region of the Bureau of Prisons (BOP) in Kansas City, Kansas. The court is asked to order defendant Laird to compel correctional officers and/or the Disciplinary Hearing Administrator at the ADX "to conduct a disciplinary hearing forthwith" or within a reasonable time to prevent "oppressive procedures prior to the hearing" and "psychological devastation from being confined in the SHU." Plaintiff alleges that the ADX officials he seeks to have compelled to act are employees of defendant Laird.


The fee for filing a civil action[1] is $400.00, which includes the statutory fee of $350.00 under 28 U.S.C. § 1914(a) and an administrative fee of $50.00 under § 1914(b); or $350.00 for one granted leave to proceed without prepayment of fees. Plaintiff has submitted a pleading that was docketed as his Motion to Proceed in forma pauperis (Doc. 2). However, this motion does not comport with federal law or local court rule. Under 28 U.S.C. § 1915(a)(1), a prisoner seeking to bring a civil action in forma pauperis must submit an affidavit that includes a statement of all his assets in addition to the inmate's averment that he is unable to pay the fee. He must also submit a certified copy of his inmate trust fund account statement for the six-month period immediately preceding the filing of his complaint. 28 U.S.C. § 1915(a)(2). The prisoner must obtain this certified statement from the appropriate official of each prison at which he was or is confined. Plaintiff's allegation that his counselor did not have the time to print his account information within three days of his request is not sufficient to excuse him from satisfying the statutory prerequisites. Local court rule requires that this motion be submitted upon court-approved forms. Plaintiff is given time to file a properly-supported motion upon court-approved forms. If he fails to comply within the prescribed time this action may be dismissed without further notice. In addition, once the court is provided the requisite financial information, it is required to determine whether or not Mr. Marshall is to be assessed an initial partial filing fee.

Mr. Marshall is reminded that even if he is granted leave to proceed in forma pauperis in this action, he will remain obligated to pay the full amount of the $350.00 statutory fee, but may do so in installments.[2] 28 U.S.C. § 1915(b)(1) and (2).


As the factual basis for this civil action, plaintiff alleges the following. On April 24, 2013, he was transferred to the Special Housing Unit (SHU) at the ADX "for Code 224." Lieutenant Sourbroyh[3] "suspended" the incident reports for incorrect dates or times pending a rewrite. On April 28, the rewritten report of Officer Pearsall was delivered to plaintiff. On May 10, the rewritten report of Officer Basta was delivered. Plaintiff asserts that his due process rights were violated because Basta's rewritten report was not delivered within "three work days" of the directive to rewrite, which he claims is the maximum time under "28 C.F.R. § 541." The court is asked to compel defendant Laird to "order his employees" to conduct an immediate disciplinary hearing or immediately release plaintiff from the SHU as well as give plaintiff "days credit" prior to his being heard on the pending incident reports.[4] The instant petition was executed on May 21, 2013.


Because plaintiff is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim upon which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A (a) and (b). Having examined all materials filed, the court finds that this action is subject to being dismissed as frivolous and for failure to state a claim. Gabriel v. U.S. Parole Com'n, 319 Fed.Appx. 742 (10th Cir. 2009)(unpublished) Id. [5] (affirming dismissal of mandamus petition as frivolous under § 1915(e)(2)(B)); Fay v. U.S., 389 Fed.Appx. 802, 803-04 (10th Cir. 2010)(unpublished)(Action before district court and this appeal found to be frivolous and to count as strikes where appellant failed to demonstrate that he was entitled to the "extraordinary remedy" of a writ of mandamus.).


The mandamus statute, 28 U.S.C. § 1361, provides that "[t]he district court shall have jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." "[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)(per curiam); West v. Spellings, 480 F.Supp.2d 213, 217 (D.D.C. 2007). To obtain mandamus relief, the plaintiff must show that he has a clear right to the relief sought, the defendant has a plainly defined and peremptory duty to perform the act in question, and no other adequate remedy is available. See Heckler v. Ringer, 466 U.S. 602, 616 (1984)("The common-law writ of mandamus, as codified in 28 U.S.C. § 1361... is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty."); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1236 (10th Cir. 2005); Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir. 1988); West, 480 F.Supp.2d at 217. "A plaintiff bears a heavy burden of showing that his right to a writ of mandamus is clear and indisputable.'" Id. (citing In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)). Courts have no authority under the mandamus statute to order a government official to perform a discretionary duty. West, 480 F.Supp.2d at 217. When a decision is committed to the discretion of an agency official, as are the administrative decisions regarding housing assignment and security classification, a litigant generally will not have a clear and indisputable right to any particular result. See Daiflon, 449 U.S. at 36; Armstrong v. Cornish, 102 Fed.Appx. 118, 120 (10th Cir.)(unpublished), cert. denied, 543 U.S. 960 (2004).

Plaintiff mainly bases his claims for relief on an alleged violation of BOP regulations. An agency's failure to follow its own regulations does not rise to the level of a constitutional violation unless the regulations themselves are compelled by the Constitution. See Gibson v. Federal Bureau of Prisons, 121 Fed.Appx. 549, 551 (5th Cir. 2004)(unpublished)(finding that violation of BOP regulation in itself is not a constitutional violation); Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003)("[T]here is no federal constitutional liberty interest in having... prison officials follow prison regulations."); United States v. Knottnerus, 139 F.3d 558, 561 n. 5 (7th Cir.), cert. denied, 525 U.S. 860 (1998). Thus, the fact that a disciplinary hearing is not held within the time specified in BOP regulations does not, without more, amount to a due process violation. See Blum v. Federal Bureau of Prisons, 189 F.3d 477, *2 (10th Cir. 1999)(Table). Moreover, absent a showing of prejudice, a technical violation of BOP regulations governing disciplinary proceedings does not necessarily entitle an inmate to judicial relief. See Von Kahl v. Brennan, 855 F.Supp. 1413, 1421 (M.D.Pa. 1994)(In a federal inmate disciplinary proceeding "where the minimal requirements of due process have been met, an inmate must show prejudice to the rights sought to be protected by the regulation claimed to be violated" in order to obtain habeas relief.); Moles v. Holt, 221 Fed.Appx. 92, 95-96 (3rd Cir. 2007)(unpublished).

Plaintiff also asserts a violation of due process. The United States Constitution guarantees due process when a person is to be deprived of life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Constitutionally adequate due process at a prison disciplinary hearing requires that a prisoner be provided with advance written notice of the charges, an opportunity to call witnesses and present documentary evidence in his defense if doing so would not be unduly hazardous to institutional safety or correctional goals, and a written statement by the factfinders of the reasons for the decision and the evidence on which they relied. See Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974); Smith v. Maschner, 899 F.2d 940, 946 (10th Cir. 1990). Due process also requires that there be some evidence to support the disciplinary hearing findings. Superintendent, Mass. Correctional Inst, Walpole v. Hill, 472 U.S. 445, 454 (1985); Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996). An inmate is entitled to procedural due process protections during disciplinary proceedings only when a liberty interest is at stake. See Sandin v. Conner, 515 U.S. 472, 480 (1995). A denial of privileges does not impose an atypical and significant hardship in relation to the ordinary incidents of prison life, and consequently no liberty interest is at stake where the inmate may be sanctioned with a loss of privileges only. Id. at 484; see ...

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