Gibson v. Thomas et al, No. 3:2010cv00081 - Document 26 (D. Or. 2010)

Court Description: Opinion and Order. The Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. Signed on 12/28/2010 by Judge Anna J. Brown. See 7 page Opinion and Order for full text. (bb)

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Gibson v. Thomas et al Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION RANDALL KENNETH GIBSON, Civil No. 10-81-BR Petitioner, OPINION AND ORDER v. WARDEN J.E. THOMAS, Respondent. ALISON M. CLARK Assistant Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 Attorney for Petitioner DWIGHT C. HOLTON United States Attorney SUZANNE A. BRATIS Assistant United States Attorney 1000 SW Third Avenue Suite 600 Portland, OR 97204 Attorneys for Respondent 1 - OPINION AND ORDER - Dockets.Justia.com BROWN, Judge. Petitioner, an inmate at FCI Sheridan, corpus action pursuant to 28 U.S.C. § 2241. brings this habeas For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus. BACKGROUND On February 16, 2008, Petitioner's wife and two children visited Petitioner at FCI Sheridan. entered the facility, the front Shortly after Ms. lobby officer found Gibson a white balloon containing tobacco on the floor next to the x-ray machine. Another balloon containing tobacco was found on the floor in the visitors' area. On February 20, 2008, Special Investigative Services ("SIS") Technician G. Martin completed a written report of the incident. SIS Martin reviewed video footage and noted "[a] Vicon camera system showed the area was review of the clear prior to [Ms. Gibson] being instructed to place her items in the x-ray." Resp. The "While Exh. 1, Att. 1, p. 1. report goes on to presenting her items the balloon fell on the floor. did not notice and went into visit. state [Ms. Gibson] An additional balloon similar to the fiist one was found on the floor in the visiting room." Id. The report went on to describe how visitors often smuggle contraband into the prison by packaging items in a balloon and passing them to inmates during a kiss. 2 - OPINION AND ORDER - ï½ ï½¯ï½¬ï½¾ï½©ï½®ï½§ï¼  the February 16, 2008, visit, Petitioner telephoned his wife. SIS characterized the telephone conversation as follows: call [Petitioner] apologized to [Ms. Gibson] her for not giving him his kiss. Gibson] Martin "During the for getting mad at (To pass the balloons.) [Ms. responded she was irritated (for losing the tobacco)." Id. SIS violating Martin's BOP report cited disciplinary code Petitioner section with 199 a charge conduct of which disrupts or interferes with the security or orderly running of the institution (most like hazardous contraband). code section 108 introduction of Petitioner received a copy of the report on February 20, 2008. On March hearing before 14, 2008, Petitioner appeared at a Disciplinary Hearings Officer disciplinary ("DHO") Cortez. Petitioner appeared at the hearing with a staff representative, Unit Manager J. Wait. Petitioner testified in his own defense: We would never do that. I don't drink or smoke. My kids are very important to me, and I got moved here so I would be close to them to visit. I wouldn't do anything to jeopardize seeing them. My cellie was irritating me and my meds make me irritated. When I got into the visiting room I hugged and kissed the kids, my wife didn't stand to kiss me because she has tendinitis in her neck. There is no money trail. If I were selling this, there would be money. The day this happened I only had two dollars in my account and I have no need to do this. 3 - OPINION AND ORDER - Resp. Exh. 1, Att. 3, p. 2. "[Petitioner] is not a incident report free." Staff Representative Wait stated: problematic inmate. Be has Resp. Exh. 1, Att. 3, p. 1. DBO Cortez also considered SIS Martin's report, about the incident prepared Lieutenant J. Miller, telephone and investigating officers Cortez found the by Senior Officer P. surveillance camera records, records, remained statements made by memoranda Lake Petitioner's Petitioner and the Unit Disciplinary Committee. greater weight of the evidence and to DBO supported a finding that Ms. Gibson dropped a balloon containing tobacco in the front lobby of FCI Sheridan. violated BOP disciplinary code As such, he found Petitioner section 399 conduct which disrupts or interferes with the security or orderly running of a BOP facility (most like code section 331 possession, manufacture, or introduction of non-hazardous tool, or other nonhazardous contraband). The DBO sanctioned Petitioner with 20 days disallowance of good conduct time, 14 days of disciplinary segregation, and an additional 15 days of disciplinary segregation suspended pending 180 days of clear conduct. visiting privileges to Petitioner also lost six months of run concurrently with six months of restricted visiting privileges with only immediate family. Petitioner appealed administrative remedies. 4 - OPINION AND ORDER - the DBO finding and exhausted his Petitioner also pursued an investigation of his case through a Freedom of Information Act request for the photographs taken from the video recording relied upon by the DHO. The request was denied because inmates are not permitted to review video evidence if doing so could be detrimental to the safe and orderly running of the institution, and access to the photographic evidence in this matter would divulge the direction and angle' of the security cameras. On January 26, 2010, Petitioner filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. In it, he alleges his due process rights were violated because there is insufficient evidence to support the DHO's decision. DISCUSSION Habeas corpus jurisdiction is available under § 2241 for a prisoner's claim that he has been denied good conduct credits without due process of law. 1269 (9th Cir. (1974), 1989). Bostic v. Under Wolff v. Carlson, McDonnell, 884 F.2d 1267, 418 U.S. 539 an inmate facing administrative disciplinary charges is enti tled, at a minimum, to the following protections: (1) to receive written notice of the charges no less than 24 hours befor.e the disciplinary hearing; (2) to present evidence and witnesses in his defense where this will not jeopardize institutional safety or correctional goals; and (3) to receive a written statement of the evidence relied upon and the reasons for the disciplinary action. Id. at 563-69. 5 - OPINION AND ORDER - Due process further requires that "some evidence" support a disciplinary hearing decision. 445, 455-56 (1985). The Superintendent v. Hill, 472 U.S. Court explained the "some evidence" standard as follows: Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. Id. In order for a litigant to prevail on a claim of insufficient evidence in a disciplinary hearing context, he must show that the record in his case is "so devoid of evidence that the findings of the ... board were without support or otherwise arbitrary." Id. at 457. Here, direct a review of the record reveals that DHO Cortez had and circumstantial evidence before him with indicia of reliabili ty and \oJhich supported his included the incident report, decision. That evidence the supporting documentation, and the video records. Petitioner states the video record does not show Ms. Gibson dropping the balloon, and that there are equally plausible explanations for the appearance of the balloon on the floor that do not involve misconduct by Ms. Gibson. Although the Court cannot ascertain whether Petitioner's statement is true as neither party submitted the video as part the record before this Court, 6 - OPINION AND ORDER - Petitioner has not established that the record in his case is so devoid of evidence that DHO Cortez's decision was without support or otherwise arbitrary. As such, Petitioner's due process rights were not violated and he is not entitled to habeas corpus relief. CONCLUSION For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. IT IS SO ORDERED. DATED this ［ｽｾ＠ day of December, 2010. ANNA J. BR· N United States District Judge 7 - OPINION AND ORDER - F:\Share\Brown-LawClerks\lO-81gibson1228opin.wpd

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