United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum, United States District Judge.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner, a prisoner in federal custody,
proceeds pro se. He alleges the federal Bureau of Prisons
(BOP) denied him due process by failing to provide a
certified translator during administrative disciplinary
proceedings and by failing to expunge the disciplinary
incident report against him after his cellmate accepted
responsibility for a disciplinary violation. He seeks the
restoration of Good Conduct Time.
is incarcerated at the United States Penitentiary,
Leavenworth, Kansas (USPL), and has been in the custody of
the BOP since February 2012. Prior to the incident involved
in this matter, he had been the subject of five disciplinary
2015, during plaintiff's initial classification at USPL,
education and unit team staff interviewed petitioner and
found him to be proficient in English.
August 2017, staff conducting a random search of
petitioner's cell discovered a small blue and white piece
of paper on top of a towel. The paper was confiscated and
tested by the Kansas Bureau of Investigation (KBI)
Laboratory, yielding a positive result for FUB-AMB and
MDMB-CHMICA, both synthetic cannabinoids.
Forensic Laboratory Report was issued on November 13, 2017,
and BOP staff prepared an incident report on November 22,
2017, charging petitioner with violation of Code 113, which
prohibits the possession of any narcotics, marijuana, drugs,
alcohol, intoxicants or related paraphernalia not prescribed
by medical staff. The incident report identifies the code
charge associated with the alleged violation, the date and
time the search was conducted, a description of the item
seized by staff and where it was found, the results contained
in the KBI report, and an explanation by the chief pharmacist
at USPL explaining why the substance seized is considered an
incident report was suspended on November 22, 2017, pending a
referral for prosecution, and was released for administrative
processing on November 27, 2017. Petitioner received the
report on the same day and was advised of his rights during
the investigation. He stated that he understood those rights
and chose not to make a statement. After investigation, staff
forwarded the incident report to the Unit Discipline
Committee (UDC) for action.
November 28, 2017, petitioner appeared before the UDC and
stated, in English, “no comment” in response to
the charges. The UDC referred the report to the Discipline
Hearing Officer (DHO). On the same day, petitioner received a
written explanation of his rights, which include the right to
have a staff representative, the right to present documentary
evidence, and the right to present a statement or remain
silent. Petitioner signed a statement showing that he did not
want to call witnesses or request the assistance of a staff
member during disciplinary proceedings.
petitioner did not request an interpreter, the DHO asked that
his case manager, who speaks Spanish and regularly serves as
an interpreter, be present during the proceedings.
hearing was conducted on December 13, 2017. Petitioner gave a
statement denying any knowledge of the contraband and stating
that he had been assigned to the cell for five months and his
cellmate had been assigned to it for three months.
considered that statement, the KBI report, staff reports, and
other material and concluded that petitioner had committed
the act charged. She noted that the contraband was found on a
towel in front of the cell door and had tested as an
intoxicant. The DHO also considered relevant petitioner's
failure to provide a defense in the initial stages of the
investigation, stating that this is common in a scenario
where multiple inmates are issued incident reports for the
same misconduct. Because of the danger that a prisoner will
be coerced into accepting responsibility for another's
actions, the DHO considers evidence that corroborates
ownership of the contraband.
imposed sanctions of the loss of 41 days of Good Conduct
Time, 90 days loss of e-mail privileges, 90 days loss of
phone privileges, and a fine of $41.00. Petitioner was
advised of the findings and his appeal rights, and the DHO
issued a written ...