August v. Payne

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 01-11562

GREGORY E. AUGUST,

Petitioner - Appellant,

VERSUS

RALPH PAYNE, Warden, Federal Correctional Institute,
Big Spring, Texas

Respondent - Appellee.

Appeal from the United States District Court
For the Northern District of Texas
(1:01-CV-138)
August 7, 2002

Before JOLLY, DUHÉ and DENNIS, Circuit Judges.
PER CURIAM:*

This pro se petitioner appeals the district court’s denial and

dismissal with prejudice of his habeas corpus petition. For the

reasons given below, we REVERSE and REMAND.

*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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I. FACTS AND PROCEDURAL HISTORY

On June 7, 1999, Gregory August, a federal prisoner in the Big

Spring Federal Correctional Institute, circulated a petition

signed by 64 inmates and alleging that various groups of Hispanic

prisoners had rioted several times in the last few months. The

petitioner also stated that the African-American prisoners were

being singled out and “systematically separated from each other”

and that they were in danger because the Hispanic prisoners greatly

outnumbered them. The petition claimed that a prison official had

been informed that “African-Americans would have to leave the

compound . . . or be killed or injured.” The petition further

stated that:

. . . African-Americans are keenly aware of the fact the

their lives are in eminent [sic] danger of attack or

death and seek the government’s intervention to eliminate

this volatile situation, African-Americans do not want to

lose their lives and do not want to be forced to take

someone elses [sic] life to prevent losing there [sic]

own.

According to the petitioners, “these [are] genuine issues of

material facts concerning our safe confinement and request that

these issues be taken seriously, before someone or numerous ones

are injured or killed, because no one took these issues seriously

and implimented [sic] preventive measures to maintain peace by

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balancing the population or transfering [sic] all the African-

Americans out of Big Springs [sic].”

Shortly after receipt of the petition, the Bureau of Prisons

(BOP) began an investigation. On June 15, 1999, the BOP charged

August with violating BOP Rules 203 (threatening another with

bodily harm) and 212 (engaging in, or encouraging a group

demonstration). August received notice of these charges on that

day. On June 17, the Unit Discipline Committee (UDC) determined

that there was not sufficient evidence to support a 203 charge and

changed the charge to a Rule 299 violation (conduct which disrupts

or interferes with the security or orderly running of the

institution of the Bureau of Prisons (conduct most like a 212

violation)). The UDC referred the case to a Disciplinary Hearing

Officer (DHO) for further proceedings. On June 17, 1999, August

was given notice of the hearing before the DHO.

On August 4, 1999, a DHO held a hearing. August admitted to

writing the petition and sending it to the Regional Office, but

contended that he did not know that writing a petition was

prohibited, did not participate in any demonstration, did not

threaten anyone or force anyone to sign the petition, and did not

encourage anyone to participate in a demonstration. Three

witnesses were called, and all testified to signing the petition.

The DHO concluded that August had committed the charged 299

violation. While acknowledging August’s right to voice his

concerns, the DHO stated that August did not have a right to file

3
a petition in concert with other inmates and should have followed

the Administrative Remedy procedure. The DHO noted that there “was

no evidence that [August] participated in a group demonstration or

encouraged others to participate in a demonstration physically,”

but noted that August’s petition sought to “‘extort’ from the

government the balancing (racial) of the inmate population or the

transfer of all African-Americans out of Big Spring.” The DHO

stated that the BOP had to view August’s language stating that

“African-Americans do not want to lose their lives and do not want

to be forced to take someone else’s life to prevent losing their

own,” as a threat to Hispanic inmates by African-Americans. The

DHO noted that although August’s “petition may have succeeded in

settling some of [his] issues,” August’s use of the wrong procedure

here “diverted staff’s attention away from the existing problems

between Hispanic inmates.” Because August’s conduct had “great

potential to fuel riots, disturbances, assaults, and escapes” and

because “[d]isruptive conduct absorbs valuable time of staff,” the

DHO sentenced August to loss of 13 days of good-conduct time (with

54 days taken, if available) and to 30 days’ disciplinary

segregation.

August appealed to the BOP Regional Director who denied relief

to August because “there appears to be sufficient evidence

presented to support the DHO’s decision.” The Regional Director

noted that August’s behavior had “the potential to motivate or

excite other inmates to engage in misconduct,” that his activity

4
placed him in a leadership position among the inmates, and that he

failed to comply with the proper administrative procedure for

seeking formal review of an issue relating to confinement, which

requires submission of requests to the Warden.

On February 21, 2001, August filed a pro se habeas corpus

petition in the district court. On the Government’s motion, the

district judge denied August’s petition and dismissed his case with

prejudice. August has timely appealed, contending that he was

denied due process because he was allegedly not informed of the

code sections he was charged with violating and because the BOP

regulations did not provide him with fair notice that his conduct

of circulating a petition was prohibited.2

2
August also raises three other claims that are without
merit. First, August claims that he was retaliated against for the
exercise of his First Amendment rights. Despite August’s
contention, he was not punished for the exercise of his First
Amendment rights. August was disciplined for circulating and
signing a petition. Because the prison grievance procedure was
available to August, this claim is without merit. Adams v.
Gunnell, 729 F.2d 362, 367 (5th Cir. 1984). Second, August argues
that he was the victim of selective prosecution because only he was
prosecuted, unlike the other prisoners who signed the petition.
Because August, however, does not dispute that he initiated, wrote,
circulated, and mailed the petition to the prison authorities, this
argument fails. United States v. Hoover, 727 F.2d 387, 389-92
(5th Cir. 1984). Finally, August contends that he was denied due
process because charges were brought against him more than 24 hours
after his conduct occurred, and 28 C.F.R. § 541.15(a) requires
delivery to the inmate of “a written copy of the charge(s) against
the inmate, ordinarily within 24 hours of the time staff became
aware of the inmate’s involvement in the incident.” Because Wolff
v. McDonnell, 418 U.S. 539, 564 (1974), requires only that the
inmate receive written notice of the charges at least 24 hours
before the hearing, not within 24 hours from the time the prison
staff became aware of the incident, this claim is also without
merit.

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II. ANALYSIS

“Prison disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant in such

proceedings does not apply.”3 On the other hand, although a

prisoner’s “rights may be diminished by the needs and exigencies of

the institutional environment, a prisoner is not wholly stripped of

constitutional protections when he is imprisoned for crime.”4 For

example, when a prisoner is granted a right to good time, the

deprivation of which may result from major misconduct, he maintains

an interest in his good time protected by the Fourteenth Amendment,

which entitles him to limited procedural protections to protect

against his right being arbitrarily abrogated.5 This limited right

to procedural due process in prison disciplinary hearings includes,

among other things, “written notice of the charges . . . no less

than 24 hours” prior to the hearing to be delivered to the “inmate

to prepare for the appearance before the Adjustment Committee.”6

3
Wolff, 418 U.S. at 556.
4
Id. at 555.
5
Wolff, 418 U.S. at 556-67. See also Henson v. U. S. Bureau
of Prisons, 213 F.3d 897, 898 (5th Cir. 2000). 18 U.S.C. §
3624(a) provides that “[a] prisoner shall be released by the Bureau
of Prisons on the date of the expiration of the prisoner’s term of
imprisonment, less any [good] time credited. . . .” (emphasis
added). This mandatory sentence reduction as a result of good
behavior indicates that once good time credit is earned, a liberty
interest is created. See Madison v. Parker, 104 F.3d 765, 768-69
(5th Cir. 1997).
6
Id. at 564.

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Relying on the logic of Wolff, we have also found this right to

include “fair warning” of proscribed conduct.7 That is, “because

we assume that man is free to steer between lawful and unlawful

conduct, we insist that laws give the person of ordinary

intelligence a reasonable opportunity to know what is prohibited,

so that he may act accordingly.”8 Here, it appears that August had

neither “fair warning” that circulating a petition was prescribed

conduct nor advanced written notice of the charges brought against

7
Adams v. Gunnell, 729 F.2d 362, 370 (5th Cir. 1984).
Despite the government’s contention, Sandin v. Conner, 515 U.S. 472
(1995), did not overrule Adams. Sandin involved a prison inmate
who was disciplined with segregated confinement because of his
abusive language and physical interference with correctional
officers. Although the inmate in Sandin was not allowed to call
witnesses in his defense, the Court found that his punishment did
violate the Due Process Clause of the Fourteenth Amendment because
the types of liberty interests recognized under Wolff are
“generally limited” to “freedom from restraint” which “imposes
atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Id. at 483-84. “[T]he Court
in Sandin clearly left intact its holding in Wolff, namely, that
the loss of good time credits under a state statute that bestowed
mandatory sentence reductions for good behavior must be accompanied
by certain procedural safeguards in order to satisfy due process.”
Madison, 104 F.3d at 769; see also Malchi v. Thaler, 211 F.3d 953,
957 (5th Cir. 2000). In Adams, we merely relied on Wolff to find
that “fair notice” is one of the due process procedural protections
afforded to inmates faced with the loss of good time credits under
a state statute. Adams, 729 F.2d at 370 (“[B]asic due process was
violated by the eventual imposition of severe punishment for
conduct no inmate could have known was against prison rules.”). In
short, because Sandin did not overrule Wolff, Adams remains intact.
In light of the restrictive nature of Sandin, however, August’s
disciplinary segregation no longer presents a constitutional claim.
Pichardo v. Kinker, 73 F.3d 612, 612-23 (5th Cir. 1996); Luken v.
Scott, 71 F.3d 192, 193 (5th Cir. 1995).
8
Adams, 729 F.2d at 368-69 (citing Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972)).

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him prior to his hearing.

A. Fair Warning

In Adams v. Gunnell, we encountered an almost identical

situation as exists here, i.e., a prisoner being punished for

circulating a petition under a general “disruptive conduct”

statute,9 and we find that case to be instructive in resolving this

dispute. In Adams, 36 African-American inmates signed a “gentle”

petition alleging that African-American inmates were not given the

same opportunity to participate in the same programs as white

prisoners at the prison.10 Two inmates were charged with having

“signed an illegal petition” in violation of Prison Rule 399, which

prohibited “conduct which disrupts the orderly running of the

Institution.”11 The disciplinary committee found that both inmates

had violated the rules and sanctioned them with loss of good time

and administrative segregation.12 Because there was nothing in the

prison regulations or in the petition itself to suggest that such

conduct was prohibited, this court found that the prison’s “catch-

all” disruptive-conduct provision violated “basic due process . .

. by the eventual imposition of severe punishment for conduct no

9
Id.
10
Id. at 362-64.
11
Id. at 362.
12
Id. at 365.

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inmate could have known was against prison rules.”13

Like the court in Adams, we are not called upon to determine

whether Rule 299 is unconstitutionally vague.14 Instead, we “must

consider whether the catch-all rule is impermissibly vague as

applied to the conduct of th[is] plaintiff[] – that is, whether

[he] had fair warning that [his] conduct was proscribed.”15 Here,

the BOP’s code of violations contains no explicit prohibition on

the circulation of petitions.16 Similarly, the Administrative

Remedy procedure does not prohibit multi-prisoner petitions.17

Nothing in any of the administrative decisions in August’s case

indicates that there is a specific prohibition on petitions at Big

Spring, or that prisoners have previously been punished for

circulating petitions. Although both the government in its brief

and the UDC at the hearing have classified August’s petition as

“threatening” and “incendiary,” August’s petition is devoid of

obscene or inflammatory language, as is evidenced by the UDC’s

decision to drop the Rule 203 charge against August for threatening

another with bodily harm. In fact, the petition indicated that

13
Id. at 370.
14
Id.
15
Id.
16
See 28 C.F.R. § 541.13, Table 3. We do not suggest,
however, that the prison does not have the authority to establish
a rule prohibiting inmates from drafting or circulating petitions.
17
See 28 C.F.R. §§ 542.10-542.14.

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“African-Americans do not want to lose their lives and do not want

to be forced to take someone elses [sic] life to prevent losing

their own.” (emphasis added). Moreover, there is no indication

that the circulation of the petition in this case had any

disruptive effect on the operation of the prison. The record

reveals no circumstances that might have given August notice that

drafting, circulating, and signing of this petition containing

nonthreatening language was prohibited and could subject him to

punishment.18 Although federal courts ordinarily defer to prison

authorities’ interpretation of rules, “fair notice of a rule

against petitions was quite clearly lacking at [Big Spring] – there

is simply no such rule.”19

B. Advanced Notice

August also claims that he was denied due process because

although he received notice of the original charges against him for

violations of Rules 203 and 212 for threatening bodily harm and

encouraging a group demonstration, he did not receive any notice of

the 299 charge for conduct which disrupts the orderly running of

the institution. August contends that his first knowledge of this

new charge was at the DHO hearing held on August 4, 1999.

The record indicates that the incident report, which listed

18
See Adams, 729 F.2d at 369.
19
Id. at 369.

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and described only the 203 and 212 charges, was completed and

delivered to August on June 15, 1999. On June 17, 1999, the UDC

evaluated the charge, took a statement from August, and referred

the issue to the DHO. At that time, the UDC modified the charges

because “there [wa]s no evidence to support the 203 & the incident

should be a 299, most like 212.” There is nothing in the record to

suggest that August was given a written copy of the “Committee

Action” form changing the charges. Although August did, on June

17, 1999, at 3:00 p.m., receive notice of the hearing before the

DHO,20 it is unclear whether this notice constituted verbal

notification or an actual written copy of the UDC “Notice of

Hearing” form. Assuming, arguendo, that August received a written

copy of the UDC form, this form does not reflect the amended

charges and indicates that August is alleged to have “threaten[ed]

bodily harm/encourag[ed] group demonstration” in violation of code

sections 203 and 212. In fact, the DHO Report indicates that the

only written notice that August received of the charges filed

against him was on June 15, 1999 -- two days before the

modification and addition of the 299 charge. In short, based on

the evidence before us, we cannot say that August received the

constitutionally required written notice of the charges brought

against him no less than 24 hours prior to his hearing.21

20
August also received an advisement of rights form at this
time.
21
Wolff, 418 U.S. at 564.

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III. CONCLUSION

For the foregoing reasons, the judgment of the district court

is REVERSED, and this case is REMANDED for proceedings consistent

with this opinion.

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