Crosby v. Fox
| Decision Date | 10 December 2018 |
| Docket Number | No. 18-1334,18-1334 |
| Parties | GREGORY D. CROSBY, a/k/a Gregory D. Cosby, Petitioner - Appellant, v. JACK FOX, Warden; DHO OFFICER ANGELO JORDAN, Respondents - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Colorado)
ORDER AND JUDGMENT*Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
Gregory D. Crosby, a federal prisoner appearing pro se,1 appeals the denial of his petition for writ of habeas corpus under 28 U.S.C. § 2241. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the decision of the district court.
Mr. Crosby is currently in the custody of the Federal Bureau of Prisons in Florence, Colorado. Mr. Crosby filed a petition for a writ of habeas corpus, alleging due process violations during two disciplinary hearings. The hearings occurred after an incident involving Mr. Crosby while he was imprisoned at the United States Penitentiary in Lewisburg, Pennsylvania. A correctional officer reported seeing Mr. Crosby and his cellmate engaged in a fight, "striking each other with closed fists punches to the head and upper torso area." ROA at 65.
The officer reported giving the men direct orders to stop fighting, but they ignored the orders. At that point, the officer radioed for assistance. Responding to the call, another officer ordered them to stop fighting, but when they ignored the orders he began administering two-second bursts from his MK-9 OC (chemical munitions) dispenser through the food slot in the door. The officer gave another verbal order for the inmates to stop fighting and submit to hand restraints, but they again refused, and he administered another two-second burst. The officer reported Mr. Crosby ran to the door and attempted to grab his arm while he was administering a third and final chemical burst. However, the officer was able to remove his arm and close the food slot in the door before Mr. Crosby could make contact.
The officers involved filled out incident reports outlining the charges for Mr. Crosby's involvement in the fight with his cellmate as well as his attempted assault on one of the officers. Prison staff delivered the reports to Mr. Crosby the same day. The Unit Discipline Committee referred both charges to a Discipline Hearing Officer("DHO") for a disciplinary hearing. The DHO advised Mr. Crosby of his rights during a hearing; however, Mr. Crosby refused to sign the form acknowledging the advisement. At that time, Mr. Crosby also indicated he did not wish to have staff representation or call any witnesses. During the hearing, the DHO considered the following pieces of evidence: written statements of the officers and other staff members who observed the incident, video evidence requested by Mr. Crosby that did not show the inside of his cell, Mr. Crosby's written statement and denial that any fight occurred, and the admission of Mr. Crosby's cellmate that they were fighting. The DHO found the greater weight of the evidence supported the charge that Mr. Crosby violated the code by participating in a fight and attempting to assault an officer. As a sanction, Mr. Crosby lost twenty-seven days of his earned good time credits for each violation. Mr. Crosby appealed the DHO's decisions, but the decisions were affirmed.
Mr. Crosby then filed an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, alleging the prison guards violated his due process rights by not reviewing the video evidence he requested or allowing him to personally review the video evidence, insufficiency of the evidence to find him guilty, and the DHO was biased and prejudiced. The district court denied the application for writ of habeas corpus, finding Mr. Crosby did not demonstrate the DHO violated his due process rights. The district court also concluded there was sufficient evidence to find Mr. Crosby guilty of violating the prison code and the hearing officer was not biased. Mr. Crosby timely filed this appeal after the district court denied his petition for writ of habeas corpus.
Mr. Crosby asserts the district court erred in denying habeas relief because he was not afforded due process. He appears to assert three claims in support of this assertion: insufficiency of the evidence, a lack of opportunity to present and personally review video evidence, and a possible Brady violation.
We review the district court's denial of a habeas corpus petition de novo. See Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). Prison disciplinary hearings are "not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 812 (10th Cir. 2007) (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). "It is well settled that an inmate's liberty interest in his earned good time credits cannot be denied without the minimal safeguards afforded by the Due Process Clause . . . ." Id. at 811 (quotation marks omitted). To satisfy the due process requirements in a hearing involving the loss of good time credit, an inmate must receive:
(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563-67). "An impartial decisionmaker is a fundamental requirement of due process that is 'fully applicable' in the prison context." Gwinn v. Awmiller, 354 F.3d 1211, 1220 (10th Cir. 2004) (quoting Wolff, 418 U.S. at 592 (Marshall, J., concurring in part and dissenting in part)). Additionally, any "revocation of good time does notcomport with 'the minimum requirements of procedural due process' unless the findings of the prison disciplinary board are supported by some evidence in the record." Hill, 472 U.S. at 454 (quoting Wolff, 418 U.S. at 558).
We review the record de novo to ensure the prison staff did not violate Mr. Crosby's due process rights as he alleges. Liberally construing Mr. Crosby's appellate brief, he makes three challenges to the disciplinary decision: there was not sufficient evidence to sustain the decision, he was not given the opportunity to present documentary evidence, and the government failed to disclose exculpatory video evidence.
To ensure inmates receive their due process rights, the findings of the disciplinary hearing must be "supported by some evidence in the record." Hill, 472 U.S. at 454. The "some evidence" standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id. at 455. The question we ask is "whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56. We have previously held a disciplinary decision "can be upheld even if the evidence supporting the decision is 'meager.'" Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996) (quoting Hill, 472 U.S. at 457).
The DHO relied upon statements made by the correctional officers, the incident reports, surveillance video and still photographs, a statement made by Mr. Crosby's cellmate that they were fighting, and Mr. Crosby's written and oral statements that therewas never a fight and the guards were all lying. We find the DHO's decision is supported by some evidence in the record and satisfies Mr. Crosby's due process rights.
The record shows the DHO advised Mr. Crosby of his rights during the disciplinary process, including the right to provide evidence and call witnesses on his behalf. Mr. Crosby requested that the DHO review the video evidence but declined to call any witnesses. He also refused to sign the paperwork indicating staff informed him of those rights. At the second hearing, the DHO once more advised Mr. Crosby of his due process rights. Again, Mr. Crosby refused to call witnesses but requested the DHO review the video evidence. Based on the record, we find the staff made Mr. Crosby aware of his rights and gave him the opportunity to call witnesses and present evidence; he presented evidence by requesting the "video surveillance be review[ed]" and chose not to call witnesses. See ROA at 49, 51, 122.
Mr. Crosby also alleges a due process violation because the surveillance video was not used in the hearing and he was unable to review it. However, the record indicates the DHO relied on the video evidence in making his decision. There is nothing to support Mr. Crosby's claim that the DHO ignored the surveillance video. In support of his contention that his inability to personally review the video constitutes a due process violation, Mr. Crosby relies on our decision in Howard, 487 F.3d 808.
In Howard, an inmate in a similar position as Mr. Crosby "requested that the DHO review videotape records" that he "expected would bolster his argument." Id. at 813. But the DHO declined to do so. We found the "DHO's unjustified refusal to produce andreview [the video] deprived Mr. Howard of the process due him." Id. at 814. Mr. Crosby's case is distinguishable from Howard. In Howard, the DHO refused to review the video the inmate requested, but here, the DHO reviewed the surveillance video in making his decision and found it corroborated the reporting officers' statements. Mr. Crosby's due process rights were not violated as in Howard because the DHO reviewed the video as requested.
But Mr. Crosby argues the failure to allow him to personally review the video violated his right to due process. Nothing in the Howard decision created a due process right of an inmate to personally review videotape evidence used in a disciplinary hearing. However, we...
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