United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b) and Special Order 3, this
action was referred to the United States magistrate judge for
case management, including findings and a recommended
disposition. As detailed here, Petitioner Juan Lorenzo
Barela's Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 should be
petition sub judice, Barela challenges a prison
disciplinary proceeding on due process grounds under 28
U.S.C. § 2241. Doc. 3 at 2. On December 31, 2017, Bureau
of Prison (BOP) staff noticed Barela had sustained injuries.
Doc. 11 at 15. A SIS investigation, which concluded on
January 30, 2018, found that Barela had been in a physical
altercation with another inmate. Doc. 11 at 15. When
interviewed, Barela admitted to fighting with the inmate.
Doc. 11 at 15. On that same day, BOP staff wrote an incident
report, charging Barela with violating BOP Code section 201,
“Fighting with Another Person.” Doc. 11 at 15.
Barela received a copy of the Incident Report on January 31,
2018. Doc. 11 at 16, ¶ 24.
February 5, 2018, a Unit Disciplinary Committee (UDC) found
the report valid and referred the charge to the DHO for
further hearing. Doc. 11 at 15-16. Barela received notice of
the DHO hearing and his hearing rights and requested M.
Martinez as his staff representative. Doc. 11 at 18; Doc. 11
at 20; Doc. 11 at 22-23. At the March 3, 2018 hearing, Barela
presented no witnesses, stated that he understood his rights,
and received a copy of the incident report. Doc. 11 at 22-23.
Relying on the incident report and Barela's own initial
admission of guilt, the DHO found that he committed the
prohibited act. Doc. 11 at 23.
the DHO's report stated that Barela “wanted to
waive [his] right to staff representative (M. Martinez),
” Doc. 11 at 23, Barela contended that he did not waive
this right, but that Martinez failed to show up to the
hearing. Doc. 14 at 4. On these grounds, Barela pursued an
administrative remedy appeal, and the regional director
ordered a rehearing on June 6, 2018, based on Barela's
lack of representation. Doc. 11 at 26-27. Following a
rehearing on June 28, 2018, the DHO again found that Barela
had engaged in the prohibited conduct of Fighting with
Another Person. Doc. 11 at 31 (original DHO rehearing
report); Doc. 11 at 36 (amended DHO rehearing report). The
DHO re-imposed sanctions of 30 days of disciplinary
segregation, disallowance of 27 days of good time credit, 30
days loss of commissary privileges, and 90 days loss of
visiting and phone privileges. Doc. 11 at 31; Doc. 11 at 36.
pro se habeas action, Barela asserts that he was not
afforded due process of law during the disciplinary
proceedings because: (1) the allegations against him were not
supported by substantial evidence; (2) he was not given staff
representation; and (3) he lacked notice and adequate time to
prepare for the rehearing. Doc. 3 at 6-7; Doc. 14 at 5. Barela
requests the return of disallowed good time credits and
expunction of the incident report and disciplinary record.
Doc. 3 at 9. Respondent argues the petition lacks merit. Doc.
10. Barela has filed a reply. Doc. 14. Upon review, the Court
concludes that Barela received adequate due process during
the disciplinary proceeding; thus, his petition has no merit.
a prisoner has a liberty interest in good time credit,
revocation of such credit must comply with minimal procedural
requirements.” Henson v. U.S. Bureau of
Prisons, 213 F.3d 897, 898 (5th Cir. 2000)).
Specifically, an inmate charged with a disciplinary violation
must be given (1) advanced written notice of the charges, (2)
“a brief period of time after the notice, no less than
24 hours, ” to prepare for disciplinary hearing, (3)
the opportunity to appear and call witnesses, (4) the
opportunity, in certain situations, to receive the assistance
of a fellow inmate or staff, and (5) a written statement by
the fact finder as to the evidence relied on for the
decision. Wolff v. McDonnell, 418 U.S. 539, 562-566
Rehearing Decision was Supported by Sufficient
claims that the DHO's rehearing findings were not
supported by the “some evidence” standard set
forth in Superintendent, Massachusetts Correctional
Institution v. Hill, 472 U.S. 445, 454-56 (1985); Doc. 3
at 8. Doc. 14 at 11-12. The record does not bear that out,
reviewing an institution's disciplinary actions, the
Court need only consider if the decision was supported by
“some basis in fact” or “a modicum of
evidence.” Hill, 472 U.S. 454-456. Court
intervention is necessary only when the DHO's action is
“arbitrary or capricious.” Reeves v.
Pettox, 19 F.3d 1060, 1062 (5th Cir. 1994); Hudson
v. Johnson, 242 F.3d 534, 536 (5th Cir. 2001)
(“The goal . . . is to balance the need to prevent
arbitrary deprivation of protected liberty interests with the
need to acknowledge institutional interests and avoid
administrative burdens.” (citations omitted)).
Moreover, the evidence need not eliminate all other
conclusions, nor does the “some evidence”
standard require a weighing of the evidence or an independent
assessment of witness credibility. Hill, 472 U.S. at
454-56. An incident report alone can constitute some
evidence. See Hudson, 242 F.3d at 536-37.
to Barela's assertions, there was clearly “some
evidence” to support the DHO's finding in the
present case. In finding Barela guilty, the DHO relied on the
incident report, Barela's own admission of guilt when he
was initially questioned, and the fact that he had injuries
consistent with an altercation. Doc. 11 at 36 (amended DHO
report on rehearing); see alsoDoc. 11 at 23
(original DHO report). Furthermore, multiple witnesses gave
statements claiming to have seen Barela fighting with the
other inmate. Doc. 11 at 36; Doc. 11 at 23. Clearly there is
more than “a modicum of evidence” to support the
DHO's findings. See Hill, 472 U.S.
complains about discrepancies between the original and
amended rehearing reports-specifically that the corrections
were not only of typographical errors, the report was amended
only after the Court ordered Respondent to answer, and the
alterations “dramatically changed the factual substance
of the third and fifth paragraphs in Sec. V” of the DHO
rehearing report. Doc. 14 at 13-14. However, the amended
rehearing report accurately reflected the evidence, and
Barela's assertions do not and cannot show otherwise.
Moreover, in this case, there is no basis to conclude that
the DHO's rehearing decision was arbitrary or capricious