11-3038
Rodriguez v. Lindsay
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
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At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 29th day of August, two thousand twelve.
PRESENT:
Robert A. Katzmann,
Gerard E. Lynch,
Denny Chin,
Circuit Judges.
_____________________________________
Nelson Rodriguez,
Petitioner-Appellant,
v. 11-3038
Cameron Lindsay, United States of
America,
Respondents-Appellees.
_____________________________________
FOR PETITIONER-APPELLANT: Nelson Rodriguez, pro se, White
Deer, PA.
FOR RESPONDENTS-APPELLEES: Jo Ann M. Navikas, Thomas M.
Sullivan, Assistant United States
Attorneys, for Loretta E. Lynch,
United States Attorney for the
Eastern District of New York,
Brooklyn, NY.
Appeal from the judgment of the United States District Court
for the Eastern District of New York (Amon, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Petitioner-Appellant Nelson Rodriguez, pro se and
incarcerated, appeals the district court’s denial of his 28
U.S.C. § 2241 petition for a writ of habeas corpus. Rodriguez’s
petition alleges that a prison disciplinary proceeding, in which
he was found to have possessed a weapon and sanctioned by, inter
alia, the loss of 40 days of good time credit, violated his right
to procedural due process. We assume the parties’ familiarity
with the underlying facts and the procedural history of the case.
We review de novo a district court’s denial of a § 2241
petition. See Sash v. Zenk, 428 F.3d 132, 134 (2d Cir. 2005).
Because “[p]rison disciplinary proceedings are not part of a
criminal prosecution, . . . the full panoply of rights due a
defendant in such proceedings does not apply.” Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). Rather, to comport with
procedural due process, an inmate charged with a violation in a
disciplinary hearing must be given: “advance written notice of
the charges against him; a hearing affording him a reasonable
opportunity to call witnesses and present documentary evidence; a
fair and impartial hearing officer; and a written statement of
the disposition, including the evidence relied upon and the
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reasons for the disciplinary actions taken.” Sira v. Morton, 380
F.3d 57, 69 (2d Cir. 2004) (citing Wolff, 418 U.S. at 563-67).
We have stressed that, in the context of such disciplinary
proceedings, “the only process due an inmate is that minimal
process guaranteed by the Constitution, as outlined in Wolff."
Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004).
Here, the record confirms that the minimum procedural due
process requirements outlined in Wolff were satisfied and we
therefore affirm for substantially the reasons set forth by the
district court in its June 30, 2011 memorandum decision and
order. On appeal, Rodriguez argues that, in violation of the
then-applicable Bureau of Prisons (“BOP”) regulations, he was not
presented with a copy of the incident report containing the
charges against him within 24 hours after BOP staff discovered a
sharpened toothbrush under his mattress on December 19, 2008.
See 28 C.F.R. § 541.15(a) (2010). As noted above, however,
Rodriguez was constitutionally entitled only to the process
outlined in Wolff, see Shakur, 391 F.3d at 119, and Wolff’s
relevant 24-hour notice period does not run from the perpetration
of the alleged incident, but rather works backward from the
beginning of the disciplinary hearing relating to that incident,
see Sira, 380 F.3d at 70 (“Due process requires that prison
officials give an accused inmate written notice of the charges
against him twenty-four hours prior to conducting a disciplinary
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hearing.”). While there is some discrepancy in the record
regarding the date on which Rodriguez received the incident
report, it is apparent that he received the report by January 5,
2009 at the latest, which was two days before his initial hearing
and nine days prior to his final hearing before the Discipline
Hearing Officer (“DHO”). Accordingly, Rodriguez received
constitutionally sufficient notice of the charges against him.
Rodriguez next argues that insufficient evidence supported
the DHO’s determination that he possessed the weapon found under
his mattress given that he was housed in an “open” dormitory unit
containing 120 other inmates, any one of which, he asserts, could
have hidden the weapon under his mattress. Judicial review of
the written findings of a prison hearing officer’s disciplinary
ruling leading to the loss of good time credit is limited to a
determination of whether the disposition is supported by “some
evidence.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S.
445, 455 (1985). As we have noted, the “some evidence” standard
outlined by the Supreme Court in Hill “is extremely tolerant and
is satisfied if there is any evidence in the record that supports
the disciplinary ruling.” Sira, 380 F.3d at 69 (quotation marks
omitted). Here, during his disciplinary hearing, Rodriguez did
not contest that the weapon was found under his mattress, nor did
he request the testimony of any witnesses. Instead, he simply
asserted that the weapon did not belong to him and that he had
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been “set up” by unidentified individuals. Given the absence of
any contradictory evidence at the hearing other than Rodriguez’s
self-serving statement that he was “set up,” there is nothing to
undermine the DHO’s reasonable conclusion that Rodriguez was
responsible for the weapon found under his mattress.
Rodriguez’s reliance on Broussard v. Johnson, 253 F.3d 874,
877 (5th Cir. 2001), the facts of which he contends are
“identical” to his case, does not undermine our conclusion that
the DHO’s finding was supported by “some evidence.” In
Broussard, the Fifth Circuit concluded that the discovery of a
pair of bolt cutters in the kitchen area where an inmate worked,
which was accessible to 100 other inmates, did not amount to some
evidence supporting a conviction for possessing contraband. See
id. Here, however, as the district court noted, Rodriguez’s bunk
was not truly a “common” space of the kind contemplated in
Broussard because it was Rodriguez’s personal living area, as
opposed to his work area, and it can be reasonably expected, in
the absence of other evidence, that an inmate will monitor his
personal living space to keep it free from contraband.
Finally, Rodriguez has waived his arguments, raised for the
first time on appeal, that the DHO rejected his request to review
security camera footage of the dormitory and that several other
inmates were within an “arm’s distance” of his bunk shortly
before the weapon was discovered under his mattress. See Joseph
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v. Leavitt, 465 F.3d 87, 93-94 (2d Cir. 2006) (“These arguments
are waived . . . as they were not . . . argued in the district
court.”). Moreover, even if we were to consider these arguments,
they find no support in the record. There is no indication in
the DHO’s report that Rodriguez requested security camera footage
at his disciplinary hearing and he affirmed, at the beginning of
the hearing, that he was “ready to proceed.” Additionally, in
his statement at the DHO hearing, Rodriguez made no mention of
the other inmates who were allegedly in close proximity to his
bunk shortly before the weapon was discovered. Thus, the DHO had
no opportunity or obligation to consider this purported evidence.
We have considered all of Rodriguez’s remaining arguments
and find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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