United States District Court, W.D. Virginia, Roanoke Division
K. Moon United States District Judge
Thompson, a federal inmate proceeding pro se, filed
a petition for writ of habeas corpus pursuant 28 U.S.C.
§ 2241, challenging a disciplinary proceeding that
resulted in, inter alia, the loss of good conduct
time. Respondent filed a motion for summary judgment, and
Thompson responded, making this matter ripe for
disposition. For the reasons stated herein, I will
grant respondent's motion for summary judgment.
alleges that on July 13, 2014, while housed at a Federal
Correctional Institution in Bennettsville, South Carolina, he
received an incident report that charged him with refusing to
breathe into a breathalyzer and threatening another with
bodily harm. On July 14, 2014, Thompson appeared before the
Unit Discipline Committee which referred the incident report
to the Disciplinary Hearing Officer (“DHO”) for a
hearing. On July 21, 2014, Thompson's requested staff
representative Lt. Bates came to Thompson's cell and
informed Thompson that he had no desire to assist inmates at
disciplinary hearings and that Thompson should never request
him again or Thompson would “be sorry.” Later
that same day, Thompson was taken to the disciplinary hearing
and Lt. Bates was not present. The DHO told Thompson that if
Lt. Bates did not want to represent Thompson, he did not have
to. Thompson states that he was then “forced” to
proceed with the disciplinary hearing without a staff
representative. Thompson did not request to present any
witnesses or documentary evidence. At the conclusion of the
hearing, Thompson was found guilty of the charges and
sanctioned with, inter alia, 68 days loss of good
conduct time. After the hearing, Thompson never received a
DHO report of the July 21, 2014 hearing.
30, 2014, Lt. Bates came to Thompson's cell again and
told Thompson that they were going to the see the DHO. The
DHO informed Thompson that they were conducting a rehearing
on the charges of refusing to breathe into a breathalyzer and
threatening another with bodily harm. Thompson argued that
the rehearing was collaterally estopped, that he did not
receive advance notice of the rehearing, and that he did not
ask for Lt. Bates to be his staff representative at a
rehearing. Thompson requested to be taken back to his cell.
The DHO stated that the rehearing would take place and that
Lt. Bates would be his staff representative. Thompson did not
request to present any witnesses or documentary evidence. On
rehearing, the DHO found Thompson guilty of the charges and
imposed the same sanction, including the 68 days loss of good
conduct time. Thompson received a copy of the DHO report from
the July 30, 2014 hearing on October 24, 2014.
filed a habeas petition pursuant to § 2241, alleging
that his right to due process was violated when 1) he did not
have a staff representative at the July 21, 2014 hearing, 2)
he did not receive a DHO report of the July 21, 2014 hearing,
3) the July 30, 2014 rehearing was conducted despite being
collaterally estopped, 4) he was not provided advance notice
of the rehearing, and 5) he was not allowed to choose a new
staff representative at the rehearing. Thompson seeks
expungement of the disciplinary convictions and restoration
of his good conduct time.
Process Clause of the Fourteenth Amendment provides that no
state shall “deprive any person of life, liberty or
property without due process of law.” U.S.
Constitutional Amendment XIV § 1. “An inmate has a
liberty interest in good time credit and no state may
constitutionally deprive him of that good time credit without
due process of law.” Moses v. Bledsoe, No.
1:03cv149, 2004 U.S. Dist. LEXIS 28924, at *6, 2004 WL
3317657, at *2 (N.D. W.Va. 2004). Certain procedural
safeguards apply when loss of statutory good time credit is
at issue. Wolff v. McDonnell, 418 U.S. 539, 557
(1974). These due process protections include: 1) advance
written notice of the charges, 2) a hearing before an
impartial decision maker, 3) the opportunity to call
witnesses and present evidence when doing so is not
inconsistent with institutional safety and correctional
concerns, 4) an opportunity for non-attorney representation
if the inmate is illiterate or the disciplinary hearing is
complex, and 5) a written decision setting forth the evidence
relied upon and the reasons for the disciplinary action.
Id. at 563-71. Further, “revocation of good
time does not comport with ‘the minimum requirements of
procedural due process, ' . . . unless the findings of
the prison disciplinary board are supported by some evidence
in the record.” Superintendent, Mass. Corr. Inst.
v. Hill, 472 U.S. 445, 454 (1985). The “some
evidence” standard is a lenient one, requiring no more
than a “modicum of evidence, ” and is met if
there is any evidence in the record that could support the
decision. Id. at 455-56.
claims that his right to due process was violated when he did
not have a staff representative at the July 21, 2014
disciplinary hearing and did not receive a DHO report of that
hearing. When prison officials set aside a disciplinary
conviction and order a new hearing, “[t]hat moots any
constitutional violations that may have occurred in the first
disciplinary hearing.” Craft v. Jones, No.
CIV-11-728-HE, 2011 U.S. Dist. LEXIS 130796, at *2-3, 2011 WL
5509876, at *1 (W.D. Okla. Nov. 10, 2011); see also
Russell v. Wilson, No. 2:15cv51, 2015 U.S. Dist. LEXIS
95063, at *14-15 (E.D. Va. June 17, 2015); Sloley v.
O'Brien, No. 7:07cv507, 2008 U.S. Dist. LEXIS 63849,
at *5, 2008 WL 2852023, at *2 (W.D. Va. July 22, 2008);
Rojas v. Driver, No. 5:06cv88, 2007 U.S. Dist. LEXIS
71177, at *7-8, 2007 WL 2789471, at * 3 (N.D. W.Va. 2007). In
this case, because Thompson was given a rehearing on his
disciplinary charges, any error in the initial hearing had no
effect and his claims regarding the first hearing have been
rendered moot. Accordingly, I will grant respondent's
motion for summary judgment as to these claims.
argues that the rehearing was barred by the doctrine of
collateral estoppel. Collateral estoppel, or issue
preclusion, bars subsequent litigation of legal and factual
issues common to an earlier action that were “actually
and necessarily determined” in the first litigation.
Montana v. United States, 440 U.S. 147, 153 (1979);
Combs v. Richardson, 838 F.2d 112, 114 (4th Cir.
1988). Thus, “collateral estoppel forecloses the
relitigation of issues of fact or law that are identical to
issues which have been actually determined and necessarily
decided in prior litigation in which the party against whom
[collateral estoppel] is asserted had a full and fair
opportunity to litigate.” Sedlack v. Braswell
Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998)
(internal quotation marks omitted). To apply collateral
estoppel to an issue or fact, the proponent must demonstrate
that: 1) the issue or fact is identical to the one previously
litigated; 2) the issue or fact was actually resolved in the
prior proceeding; 3) the issue or fact was critical and
necessary to the judgment in the prior proceeding; 4) the
judgment in the prior proceeding is final and valid; and 5)
the party to be foreclosed by the prior resolution of the
issue or fact had a full and fair opportunity to litigate the
issue or fact in the prior proceeding. Id.
has not shown that the doctrine of collateral estoppel
applies in the context of a prison disciplinary hearing.
Also, there was no final judgment or determination in regard
to Thompson's first disciplinary hearing. The only DHO
report produced was related to the rehearing. Accordingly, I
conclude that Thompson's claim that the second hearing
was barred by the doctrine of ...