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Derrick Bullard v. Warden William Scism

May 18, 2011

DERRICK BULLARD, PETITIONER
v.
WARDEN WILLIAM SCISM, : RESPONDENT



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

On December 13, 2010, Petitioner Derrick Bullard ("Petitioner" or "Bullard"), an inmate presently confined at theLow Security Correctional Institution -Allenwood ("LSCI Allenwood") in White Deer, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. (Doc. 1.)

Bullard alleges that his "protected liberty interest was violated" by the Unit Disciplinary Committee ("UDC") and Discipline Hearing Officer ("DHO") at the Metropolitan Detention Center Brooklyn ("MDC Brooklyn") "when good time credits were taken under invalid procedural due process when the UDC and DHO created fiat policy." (Id. at 6.) He inquires "[w]hether the DHO and UDC substantially complied with regulations of inmate discipline?" and also asks whether Federal Bureau of Prisons ("BOP") regulations are valid or whether the UDC and DHO can create "fiat policy" as the process moves along. (Id.) Bullard requests that the administrative remedy process be "excused or judicially waived" because he claims that he is not challenging the application of the BOP regulations, but instead only challenges their validity. (Id. at 7.) He also claims that the MDC Brooklyn staff interfered with his ability to utilize the administrative remedy process. (Id.)

By Order dated January 5, 2011, service of the Petition was directed, and Respondent was directed to answer the allegations in the Petition within twenty-one (21) days. (Doc. 4.) On January 25, 2011, Respondent filed a Response (Doc. 5) to the Petition along with supporting exhibits (Doc. 5-1).*fn1 Bullard filed a Reply on February 8, 2011. (Doc. 6.) Thus, the Petition is fully briefed and ripe for review. For the reasons set forth below, the Petition will be denied.

I. FACTUAL BACKGROUND

Bullard presently is serving a 240 month term of imprisonment that was imposed on March 5, 2004 by the United States District Court for the Eastern District of Pennsylvania for conspiracy to distribute cocaine base. (Doc. 5-1, Romano Decl., ¶ 2.) His projected release date is January 27, 2019 via good conduct time release. (Id.) On July 27, 2010, Bullard received an incident report charging him with making sexual proposals or threats to another in violation of Code 206. (Id. at 5 ¶ 6; Doc. 6, Reply, Ex. 1 (A1), at 9, 7/27/10 Incident Report.) The description of the incident in the July 27 incident report states that, based on a review of the NICE Camera System and Bullard's self-admission, it was determined that he wrote a love letter to a staff member indicating that she should be complimented everyday. (See Doc. 6 at 9 ¶ 11.) The description further stated, "Specifically, you were observed on the NICE camera system walking to the officer's station and slipped a letter under the door with the words, 'Read carefully.'" (See id.)

The incident report was delivered to Bullard on July 27 at 5:15 p.m. (See id. ¶¶ 15, 16.) A UDC hearing was held on July 28, 2010, after which the UDC determined that a referral to the DHO was appropriate. (See id. ¶ 18 B; Doc. 5-1 at 16, 8/31/10 DHO Report.) On August 17, 2010 at 9:30 a.m., the incident report was re-written and re-investigated to properly notify Bullard of the charges. (Doc. 5-1 at 5, Romano Decl., ¶ 6; Doc. 5-1 at 21, 8/17/11 Rewritten Incident Report; Doc. 5-1 at 16, DHO Report, § V.) The identification of the charges against Bullard on the re- written incident report is the same as on the July 27 report, specifically, making sexual proposals or threats to another in violation of Code 206, and the re-written report again states that the charges are based on a review of the NICE Camera System and Bullard's self admission. (Doc. 5-1 at 21 ¶ 11.) The re-written incident report only differs from the original report in that it quotes verbatim the contents of the letter that Bullard submitted to the female staff member in which he compliments her, and in particular, her spirit, beauty, fragrance, walk, and body. (Id.; Doc. 5-1 at 25, Copy of letter.)

The re-written report was delivered to Bullard on August 17 at 12:59 p.m. (Doc. 5-1 at 21 ¶¶ 14-16.) A UDC hearing was held on August 26, 2010, and the rewritten report contains the following summary of Bullard's comments at that hearing:

I/M Bullard is sticking to the same story he mentioned to the UDC before the DHO sent the original one back for a rewrite. He is making a statement that he is a poet and has a habit of writing poems while incarcerated. (Id. ¶ 17.) Following the UDC hearing on the re-written report, the UDC referred the incident report to the DHO for further hearing. (Id. ¶¶ 18 B, 19.)

On August 26, 2010 at 9:55 a.m., Bullard was notified of the UDC's action and was advised of his rights before the DHO. (Id. at 22 ¶ 21; Doc. 5-1 at 15, DHO Report, § I. C.) On August 31, 2010, DHO Garcia conducted a hearing on the charges against Bullard of making sexual proposals or threats to another. (Doc. 5-1 at 5, Romano Decl., ¶ 6; Doc. 5-1 at 15-18, DHO Report.) At the hearing, Bullard's due process rights were read and reviewed with him by the DHO, and Bullard indicated that he understood his rights, had no documentary evidence to present, and requested no witnesses. (Doc. 5-1 at 16 § V.) Bullard requested a staff representative, and Lieutenant Gonzalez appeared on his behalf. (Id. at 15 § II. B.) It also was noted that the incident report was re-written and re-investigated to properly notify Bullard of the charges, and that he received a second UDC hearing on August 26, 2010. (Id. at 16 § V.) It was further noted that the initial incident report was issued to Bullard on July 27, 2010 and that the initial UDC hearing was held on July 28, 2010. (Id.)

In his statement at the hearing, Bullard indicated that he wanted to apologize because he never intended to compromise anyone's position. (Id. § III. B.) He explained that he writes poetry and had written the letter at issue in May, but felt that it applied to the female staff member in some ways, so he gave it to her. (Id.) He stated his position that his poem in no way could be construed as a sexual proposal or threat. (Id.)

Upon consideration of the evidence, the DHO found that Bullard committed the prohibited act of Code 299, conduct which disrupts the orderly running of the institution, most like Code 206, making sexual proposals or threats to another. (Id. at 16 § V.) DHO Garcia explained that the decision was based upon the reporting officer's statements, the review of the NICE Camera System, Bullard's handwritten letter, and Bullard's admission that he wrote and delivered the letter. (Id.) In accordance with the sanctions available for 200-level offenses, see 28 C.F.R. § 541.13, Table 3, Bullard was sanctioned with fifteen (15) days in disciplinary segregation; the loss of commissary and TRU LINKS privileges for 175 days; and the loss of twenty-seven (27) days of good conduct time. (Id. at 17 § VI.) DHO Garcia explained that these sanctions were imposed because there is zero tolerance for the type of communication that Bullard directed to staff as it undermines the authority of staff and demonstrates a disregard for rules and regulations. (Id. § VII.) It was further explained that this type of behavior disrupts the orderly running of the institution by impeding staff's ability to perform their assigned duties, and that if it continues uncorrected, it tends to encourage other inmates to participate in the same type of behavior. (Id.)

On September 8, 2010, Bullard was provided with a copy of the DHO Report, which contains a summary of the specific evidence relied upon by the DHO in reaching the finding of guilt and an ...


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