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Hubbard v. Ratledge

United States District Court, W.D. Virginia, Roanoke Division

February 7, 2017



          Glen E. Conrad Chief United States District Judge.

         Creadell Hubbard ("Hubbard"), a federal inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, alleging that he was denied due process during a prison disciplinary proceeding.[1] Upon review of the record, the court grants respondent's motion to dismiss.


         On January 28, 2013, while Hubbard was incarcerated at the Federal Correctional Institution in Butner, North Carolina ("FCI Butner II"), officials placed him in administrative segregation, pending an investigation, after he was involved in an incident with another inmate. After nearly ten months, on October 9, 2013, Hubbard received Incident Report No. 2502030, charging him with violating the Federal Bureau of Prisons ("BOP") prohibited acts code, sections 104 (possession of a weapon) and 224 (minor assault of any person).[2] The incident report described the following events:

On October 9, 2013, . . . an SIS investigation concluded that inmate [Hubbard] did in fact Possess a Weapon and Assault inmate [Doe] by striking him repeatedly with a 13 % inch pipe (weapon) he took out of inside recreation at 7:33 am.[3] The pipe had a lock attached to one end.
Specifically, [in institutional video recorded] on January 28, 2013 . . . inmate Hubbard can be seen exiting the Physical Therapy room. ... As he turns away from the camera the white pipe can be seen in his left front pocket....
On January 28, 2013, at approximately 10:45 am, as seen on ... video, [Hubbard] is observed in Housing Unit OD walking out of cell 18... with the weapon (pipe) in his right hand as he enters [cell 19]. At 10:47 am, [Hubbard] and [Doe] are observed exiting the cell hanging on to each other as they move to the center of the common area. [Hubbard] can be seen striking [Doe] in the head with the weapon (pipe) in his right hand at least twice. [Doe] can then be seen going to the floor on his back and pulling Hubbard on top of him. At 10:48 am [Doe] takes the weapon (pipe) away from [Hubbard]. [Doe] can be seen swinging the weapon (pipe) at [Hubbard] to back him up. Hubbard then walks away [and Doe] takes the weapon (pipe) to the Unit Officer.
During an interview conducted with [Hubbard that day], he admitted that he was in possession of the weapon (pipe). As a result of this altercation [Hubbard] suffered a small superficial abrasion to his left index finger.
As a result of this assault, [Doe] suffered two 2-3mm lacerations on left side of head.

         (Wahl Aff. Attach. A, at 2, ECF No. 5-2.)

         A prison disciplinary hearing officer ("DHO") conducted Hubbard's first formal hearing on these charges on December 12, 2013. Hubbard alleges that during the hearing, he asked to know all the evidence being used against him, but the DHO denied this request. Hubbard then allegedly exercised his right to remain silent. The DHO ruled that Hubbard had committed the prohibited acts as charged and imposed sanctions: for the 104 offense, disallowance of 41 good conduct days; for the 224 offense, disallowance of 27 good conduct days; and for each offense, 30 days of disciplinary segregation and loss of commissary privileges for six months.

         Hubbard appealed the DHO's findings, and in May 2014, the BOP regional director granted the appeal in part, expunged the disciplinary conviction, and remanded the incident report for a rehearing.[4] By this time, Hubbard had been transferred to USP Lee. On September 18, 2014, an officer served him with a copy of Incident Report No. 2502030 for purposes of the rehearing. The DHO report of the rehearing indicated that on September 18, 2014, Hubbard signed a form waiving 24-hour notice of the hearing that occurred later that same day. The form also indicated that Hubbard did not request an advisor or witnesses for the hearing.

         The DHO report stated that at the hearing, Hubbard indicated again that he did not request a staff representative or any witnesses and did not present any documentation as evidence. Hubbard allegedly asked the DHO to tell him the reasons that the regional director granted a rehearing on the two charges, and the DHO stated that according to policy, Hubbard could not know the reasons. According to the report, the DHO read the description of events from the incident report and asked Hubbard if the report was true. The DHO noted that Hubbard said, "Yes, sir, " and indicated that he "had his reasons." (Wahl Aff Art. B, at 7, ECF No. 5-2.)

         The DHO found that Hubbard had committed the act as charged. In the written report, the DHO stated that he based this guilty finding on the evidence in the incident report and Hubbard's admission that he had committed the prohibited acts. The DHO also noted that Hubbard had presented no evidence to show that he had not committed the acts charged, and that the DHO found no such evidence in the record. Therefore, the DHO report stated, "the DHO finds you violated Code 104, Possession of a Dangerous Weapon, and code 224, Minor Assault." (Id. at 8.) As penalty for the offenses, the DHO upheld the sanctions imposed after the December 2013 hearing and noted that Hubbard had already served all of them. The DHO report also states reasons for the sanctions: to hold Hubbard accountable for his possession and use of a weapon to assault another person, because such conduct "threatens the health, safety, and welfare of not only the inmate involved, but all other inmates and staff alike. In the past, this action/behavior has been shown to ...

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