FILED
NOT FOR PUBLICATION AUG 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE WILLIAMS, Jr., No. 11-35031
Petitioner - Appellant, D.C. No. 3:08-cv-01476-MA
v.
MEMORANDUM*
J. E. THOMAS, Warden, FCI-Sheridan,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted July 12, 2012
Portland, Oregon
Before: GOODWIN, PREGERSON, and CHRISTEN, Circuit Judges.
Federal prisoner George Williams, Jr. appeals the district court’s denial of
his 28 U.S.C. § 2241 petition for habeas corpus. Williams challenges prison
disciplinary sanctions that resulted in a loss of good conduct time credits (“good
time”) totaling 134 days based on three incidents and seven related incident
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reports. We have jurisdiction under 28 U.S.C. § 1291, and we “review a district
court’s denial of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 de novo.”
Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008). The district court’s
underlying findings of facts are reviewed for clear error. McNeely v. Blanas, 336
F.3d 822, 826 (9th Cir. 2003). We reverse in part and affirm in part.
Incident Reports 1633188, 1633234, 1633242
Williams contends that his due process rights were violated during
disciplinary hearings that concerned alleged assaults at the Federal Detention
Center SeaTac (“SeaTac”) in Washington State. Williams had attempted suicide
while housed at SeaTac and prison guards alleged he was assaultive when they
responded. By the time the resulting disciplinary hearings were held, Williams had
been transferred to a different facility. Williams informed the Disciplinary Hearing
Officer (“DHO”) that he reached an agreement with the officials at SeaTac
whereby he would come off suicide watch in exchange for the prison authorities
returning his property and expunging the disciplinary charges. A
contemporaneously created notation in Williams’s prison records from SeaTac
states: “Inmate is to be taken off D/S status, given all his property, and all pending
sanctions expunged.”
2
Prisoners have a limited procedural due process right to call witnesses at
disciplinary hearings so long as it “‘will not be unduly hazardous to institutional
safety or correctional goals.’” Ponte v. Real, 471 U.S. 491, 499 (1985) (quoting
Wolff v. McDonnell, 418 U.S. 539, 566 (1974)). “[P]rison officials may be
required to explain, in a limited manner, the reason why witnesses were not
allowed to testify.” Id. at 497. Williams asked to have the warden from SeaTac
testify about what he alleges was an agreement to dismiss the disciplinary charges
against him. The DHO did not allow Williams to call the warden, deeming the
proposed testimony irrelevant because the prospective witness would not have
stated that Williams did not commit the prohibited acts. In other words, the DHO
was under the impression that he was required to determine whether the disputed
conduct occurred regardless of whether the officials at SeaTac had or had not
agreed to dismiss the disciplinary charges.
The DHO’s duties included determining whether the alleged disciplinary
infraction occurred and, if it did, fashioning an appropriate sanction. 28 C.F.R.
§ 541.18 (2008). The proffered testimony from the warden at SeaTac may have
been irrelevant to determining whether an infraction occurred, but it was relevant
to imposing a sanction. Indeed, if on remand Williams’s version of events proves
to be accurate, it may demonstrate that no sanction was warranted.
3
The Bureau of Prisons has a policy of encouraging informal resolution of
disputes. Id. § 541.14. On this record, we have no way of knowing whether the
warden’s testimony would have supported Williams’s version of events or whether
there is a different explanation for the notation in the SeaTac prison records. We
decide only that the DHO erred by ruling the testimony irrelevant. Accordingly,
we reverse and remand the district court’s denial of this portion of the petition for
habeas corpus.
Incident Reports 1706615, 1706620
Williams also challenges two sanctions arising from an incident where he
refused orders to submit to hand restraints. Williams alleges that his due process
rights were violated because he received two sanctions for the same offense. We
disagree. Substantive due process requires that there be “some evidence in the
record” supporting the decision by the prison disciplinary board to revoke good
time. Superintendent v. Hill, 472 U.S. 445, 454 (1985). The DHO’s decisions are
supported by “some evidence” that Williams refused two separate orders given by
two different prison guards. We affirm the denial of this portion of the petition for
habeas corpus.
4
Incident Reports 1720378, 1720411
Finally, Williams argues that his due process rights were violated because
the DHO failed to consider video evidence of a second suicide attempt that also
allegedly involved Williams assaulting prison guards who responded. According
to Williams, the video refutes the guards’ testimony that he was combative.
Williams cites to Viens v. Daniels to support his argument that the DHO
impermissibly overlooked the video evidence. 871 F.2d 1328, 1336 n.2 (7th Cir.
1989) (holding that a “prison disciplinary body may not arbitrarily refuse to
consider exculpatory evidence offered by a prisoner simply because the record
already contains the minimal evidence suggesting guilt required by Hill”). Viens is
inapposite because the record shows the DHO did review the video — as did the
district court and this court. We agree with the district court’s finding that the
video is not conclusive evidence that Williams did not assault the responding
guards; at some points, the video does not provide a clear view of Williams. The
officers’ reports and their medical records provide some evidence that Williams
exhibited assaultive behavior in the aftermath of the second suicide attempt. We
therefore affirm this part of the district court’s denial of the petition for habeas
corpus.
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Each party shall bear its own costs on appeal. REVERSED in part and
AFFIRMED in part.
6