Tucker v. Wiley , 216 F. App'x 730 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 8, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ORVILLE TUCKER,
Petitioner-A ppellant, No. 06-1415
v. (D . of Colo.)
R. W ILEY, W arden, (D.C. No. 06-CV-1085-ZLW )
Respondent-Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
Petitioner-Appellant Orville Tucker, a federal prisoner appearing pro se,
appeals the dismissal of his 28 U.S.C. § 2241 application challenging a prison
disciplinary conviction. For substantially the same reasons set forth by the
district court judge, we deny his request and dismiss this appeal.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
I. Background
Tucker is incarcerated at the United States Bureau of Prisons in Florence,
Colorado. Through his § 2241 petition, Tucker challenges a prison disciplinary
proceeding that resulted in his loss of good-time credits after he allegedly set fire
to his prison cell. Tucker raises one claim asserting that his constitutional due
process rights were violated when the disciplinary hearing officer (DHO) found
him guilty without sufficient evidence. Specifically, Tucker says he neither
admitted to nor pleaded guilty to the charge, and there is no photo or video
evidence linking him to the act. Tucker asks that the findings of the DHO be
reversed and his good-time credits be returned.
II. Analysis
W e review de novo the district court’s denial of a § 2241 petition.
Grossman v. Bruce, 447 F.3d 801, 804 (10th Cir. 2006). Federal inmates such as
Tucker have a liberty interest in good-time credits. Brown v. Smith, 828 F.2d
1493, 1494 (10th Cir. 1987) (“18 U.S.C. § 4161 creates a right to good time
credits and a deprivation of that right is a deprivation of liberty.”)
W hen official punishment implicates a liberty interest, prisoners are
entitled to some due process protections in their prison disciplinary proceedings.
They are not, however, entitled to “the full panoply of rights due a defendant” in
a criminal prosecution. Id. at 805 (citing Wolff v. M cDonnell, 418 U.S. 539, 556
(1974)). W e agree with the district court’s conclusion that Tucker w as granted all
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of the due process protections he was due and that his claim, therefore, is without
merit.
The Supreme Court has held the following to be prerequisites of adequate
due process in a prison disciplinary hearing: (1) the prisoner must be provided
with advance written notice of the charges; (2) the prisoner must have an
opportunity to call witnesses and present documentary evidence if doing so would
not compromise institutional safety or correctional goals; and (3) at the close of
the proceedings, the prisoner must be provided a written statement setting forth
the reasons for the fact finders’ decision and the evidence on which they relied.
Wolff, 418 U.S. at 563–66. See also Fogle v. Pierson, 435 F.3d 1252, 1259 (10th
Cir. 2006). In addition, due process requires at least “some evidence” to support
any sanctions that are ultimately leveled against the prisoner. Superintendent,
M ass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985); Wilson v. Jones, 430 F.3d
1113, 1117 (10th Cir. 2005).
Tucker only takes issue with the final due process requirement referenced
above, arguing prison officials lacked sufficient evidence to strip him of his good-
time credits.
Ascertaining whether [the some evidence] standard is satisfied does not
require examination of the entire record, independent assessment of the
credibility of witnesses, or weighing of the evidence. Instead the
relevant question is whether there is any evidence in the record that
could support the conclusion reached by the disciplinary board.
Hill, 472 U.S. at 455–56; Jones, 430 F.3d at 1124.
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The evidence on record in Tucker’s case is certainly adequate to meet this
standard. For example, he attached the following Incident Report to his § 2241
petition:
On 10/22/04 at approx. 6:45 p.m. the B low er fire alarm went off.
Upon arriving at cell 03-107, occupied by inmate Tucker, a fire
consisting of government clothing, and bedding tied to the inner grill
was discovered. The sprinkler system had been activated flooding cell
307. The TV, all government clothing and bedding, government books,
and the paint on the w alls were all damaged. Inmate Tucker broke apart
his four food trays into numerous pieces. Operations Lt. responded and
extinguished the fire using a unit fire extinguisher.
Petition at Ex. C. Similarly, the Discipline Hearing Officer Report attached to the
petition notes that Tucker submitted a written statement admitting the charge.
Petition, Ex. B at 1. Finally, the Officer Report provided to Tucker after the
hearing stated that the DHO relied on the following evidence in reaching their
decision: (1) the reporting staff member’s statement; (2) Tucker’s oral and written
statements; (3) a memorandum from another staff member corroborating the
statement of the reporting officer; and (4) the cost-center manager’s estimate of
what repair and replacement would cost. Petition, Ex. B at 2–3.
Accordingly, we reject Tucker’s claim that he was denied due process in
his prison disciplinary hearing on the basis that officials lacked evidence for their
finding of his guilt.
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III. Conclusion
For the reasons set forth above, we deny Tucker’s petition for § 2241 relief
and DISM ISS this appeal. In addition, we DENY his request to proceed in form a
pauperis as we conclude that his appeal is not taken in good faith.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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