Jordan v. U.S. Bureau of Prisons

1

MARK JORDAN, Plaintiff, v. US BUREAU OF PRISONS, Defendant.

Civil Action No. 21-cv-00614 (CKK)

United States District Court, District of Columbia

February 25, 2022

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

Plaintiff Mark Jordan is in the custody of the Federal Bureau of Prisons (“BOP”) and is currently, and at all times relevant to the Complaint (“Compl.”), ECF No. 1, designated to the United States Penitentiary located in Tucson, Arizona (“USP Tucson”). He sues the BOP under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., seeking review of a prison disciplinary determination. Compl. at 1. BOP has filed a Motion to Transfer (“MTT”), ECF No. 10, this matter pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the District of Arizona, which Plaintiff opposes, ECF No. 14 (“Opp'n”).^[1] For the reasons discussed below, BOP's Motion to Transfer will be granted and this matter will be transferred to the District of Arizona.

I. BACKGROUND

Plaintiff initiated this lawsuit on March 5, 2021, “seeking review of an agency decision” under the APA. Compl ¶ 1. He asks this Court to declare and overturn “his prison disciplinary conviction for ‘running a business' as arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, not in accordance with and without procedures required by law, and otherwise [based] upon factual lacking substantial evidentiary record support.” Id. More specifically, he seeks to vacate and expunge a determination resulting from a July 2019 hearing, and held by the Unit Discipline Committee (“UDC”) at USP Tucson. See Id. ¶¶ 21-7; id. at p. 8. Plaintiff was found guilty of the prohibited act of “conducting a business without authorization.” See Id. ¶¶ 10-24. He was sanctioned with a 120-day loss of commissary privileges. Id. ¶ 23. He contends that (1) the conviction lacked an adequate evidentiary basis (Claim I), (2) the conviction was obtained in violation of law because UDC members acted as their own witnesses and investigators (Claims II and III), and (3) UDC lacked statutory authority to impose any disciplinary sanction other than a loss of good-conduct time (Claim IV).^[2] See Id. at pp. 7-8.

As background, on July 15, 2019, USP Tucson prison guards executed a “shakedown” of Plaintiff's cell and confiscated various unopened food items and a notebook entitled “store, ” that “contained names and figures.” See Id. ¶ 10. Plaintiff maintains that all of these food items were, as far as he knows, properly purchased from the prison commissary by his cellmate, Nicholas Turning Bear (“Turning Bear”). See id. ¶¶ 10-13.

Plaintiff and Turning Bear were then summoned to the “USP Tucson lieutenant's office, where they were met by SIS Technician Anthony Gallion.” Id. ¶ 13. Plaintiff contends that, at the meeting with Gallion, Turning Bear admitted that the food items and the “store” ledger solely belonged to him. Id. ¶ 13. Gallion then had Turning Bear formally acknowledge his responsibility by signing “BOP Form 402, Confiscation and Disposition of Contraband Form.” Id. ¶ 14; see Compl. Exhibits (“Exs.”), ECF No. 1-1, at Ex. A, at 3 (Form 402). According to Plaintiff, Gallion also “advised Turning Bear that he would not be receiving an incident report but would have to donate the [confiscated] property to the institution[.]” Compl. ¶ 14

According to Plaintiff, on the following day, July 16, 2019, he and Turning Bear “were again summoned to the lieutenant's office, ” and once there, “Lieutenant O. Lopez” informed them that they would each be receiving incident reports and would be charged with “violations of BOP prohibited act codes 305 (Possessing Unauthorized Items) and 334 (Conducting a Business Without Authorization).” Id. ¶ 16. Plaintiff and Turning Bear were confused and contested the issuance of these impending incident reports, given the contradictory information they had purportedly received the day before from Gallion. See id. Plaintiff explained to Lopez that he could not have plausibly had any involvement because “had only just recently been assigned to the cell [with Turning Bear] from the segregation unit.” See Id. ¶ 16. He also explained that “he had no excessive property or ledger and did not think it was a ‘store.' ” Id.

Nonetheless, Plaintiff “was assigned Incident Report #3279425, while Turning Bear was assigned Incident Report #3279426.” Id. ¶ 18; see Compl. Ex. A at 1 (Turning Bear's Incident Report); Ex. B at 1 (Plaintiff's Incident Report). The incident reports are identical, providing a list of the confiscated “commissary items, ” and alleging that “both inmates appeared to be running a business with an excessive amount of commissary items . . . [that] could not be stored inside their wall locker or issued storage bag, ” further evidenced by the ledger. See Compl. ¶ 18 (citing Compl. Ex. A at 1; Compl. Ex. B at 1). The incident reports also state that the “inmates denied ownership of the items found, ” Compl. Ex. A at 1; Compl. Ex. B. at 1, which Plaintiff contends contradicts Turning Bear's prior ownership admission to Gallion, and his execution of Form 402, see Compl. ¶ 17.

Thereafter, Plaintiff and Turning Bear had separate hearings. See id. ¶¶ 18-24. On July 17, 2019, UDC held a hearing for Turning Bear. Id. ¶ 19. According to Plaintiff, the UDC hearing officials attempted to pressure Turning Bear into implicating Plaintiff, but Turning Bear continued to take full responsibility for the food items and ledger, absolving Plaintiff of any participation. See id.

Meanwhile, UDC's documentation indicates that, at his hearing, Turning Bear admitted to both his and, ostensibly, Plaintiff's involvement, testifying that “[y]es, we were running a store[, ]” Compl. Ex. A at 2 (UDC Hearing Determination for Turning Bear); see Compl. ¶ 20. Based on this admission, and in conjunction with the incident report, the confiscated food items and ledger, and prison trust fund account statements (which evidenced suspicious financial deposits), UDC found that Turning Bear was guilty of “prohibited acts of both codes 305 and 334, sanctioning him to 30 days commissary restriction.” See id.

Later that morning, UDC held Plaintiff's hearing. See Compl. ¶ 21; Compl. Ex. B at 2 (UDC Hearing Determination for Plaintiff). Plaintiff states that, “at the outset of the hearing, ” he requested to “call witnesses, ” more specifically, Turning Bear, but he was informed by the UDC hearing officials that witnesses could not be called at a UDC proceeding. See Compl. ¶ 21. Plaintiff now acknowledges that he was not, in fact, entitled to call witnesses. See id. (citing 28 CFR 541.7) (other citation omitted). At his hearing, Plaintiff again denied ownership of any of the confiscated food items, and recounted Turning Bear's prior admissions of responsibility. See Id. ¶ 22; Compl. Ex. B at 2.

Ultimately, UDC found that Plaintiff “committed the prohibited act of code 334, running a business without authorization, and sanctioned him to loss of commissary for 120 days, ” which Plaintiff contends has prohibited him from purchasing “items essential to his religious exercise.” Id. ¶ 23; Compl. Ex. B at 2; see Compl. Ex. C at 1-3 (Plaintiff's Separate Administrative Complaints and Appeal in re: Denial of Religious Expression). UDC predicated its findings on Plaintiff's incident report, Turning Bear's admission (at his own hearing) that he and Plaintiff were “running a store, ” and trust fund accounting. See Compl. ¶ 24; Compl. Ex. B at 2. It does not appear that UDC ultimately pursued the other charge against Plaintiff, namely, “Code 305 (possessing anything unauthorized).” See Compl. ¶ 23; Compl. Ex. B at 2.

Plaintiff argues that there is no evidence in UDC's record to support its reliance on the trust fund accounting, and to the extent that the accounting is derived from “evidence the UDC obtained through independent investigation, ” he contends that UDC violated 28 CFR 541.7(b), which prohibits UDC members from acting as investigators.” Compl. ¶ 25. He further challenges the legitimacy of UDC's determination, arguing that it had no right to rely on Turning Bear's testimony at a different hearing, because Plaintiff could not call him as a witness at his own. See id. ¶ 27. Moreover, Plaintiff maintains that Turning Bear's hearing admission makes the UDC hearing officials the sole de facto “witnesses” to Turning Bear's testimony, in contravention of 28 CFR 541.7(b). See id. ¶¶ 27, 29. Finally, Plaintiff denies that his incident report was incriminating or could serve as a basis for the UDC's findings, because he UDC “cleared [him] . . . of the Code 305 charge of possessing any unauthorized items (commissary/store items or ledger).” Id. ¶ 26. He seems to imply that the incident report pertains primarily to the alleged possession of unauthorized commissary items, rather than the charge he was eventually convicted of, namely, running a store, see id., though the Court notes that the incident report charges Plaintiff with both “Code 305” and “Code 334, ” see Compl. Ex. B at 1.

Thereafter Plaintiff unsuccessfully pursued relief from UDC's determination through BOP's Administrative Remedy Program, see Id. ¶¶ 28, 30, first through his Complex Warden at USP Tucson (“Warden”), see Compl. Ex. B at 3-8 (Plaintiff's Appeal Documents & Denial Determination from Appeal to Warden), then to Gene Beasley, the BOP Regional Director for the Western Region (“WXR”), see Id. at 9-11 (Plaintiff's Appeal Documents & Denial Determination from Appeal to WXR) (located in Stockton, California), see Id. at 8 (indicating that WXR is in Stockton), and finally, to National Inmate Appeals Administrator (“NIAA”) located in BOP's Central Office in the District of Columbia, see Id...