Dillard v. Watson

Background

Scott Lynn Dillard, who represented himself, was incarcerated at the Federal Correctional Institution in Sandstone, Minnesota. While incarcerated at the Federal Correctional Institution in Morgantown, West Virginia, he mailed a letter to his wife. The Bureau of Prisons determined that the letter used coded language to request smokeless tobacco, which was treated as contraband at the prison.

The Bureau charged Dillard with two prohibited acts: using mail in a way that circumvented mail monitoring procedures by writing in code, and attempting to introduce non-hazardous contraband, specifically tobacco. At the first disciplinary hearing, DHO T. Tompkins found Dillard guilty of writing in code, dismissed the tobacco charge for lack of evidence, and imposed a 27-day loss of good-conduct time along with other sanctions. After Dillard appealed, the Regional Director sent the incident report back for a rehearing.

At the rehearing, DHO Michael Gyurke Jr. dismissed the writing-in-code charge but found Dillard guilty of attempting to introduce tobacco. DHO Gyurke imposed a 14-day loss of good-conduct time, along with disciplinary segregation and temporary loss of commissary and email privileges. Dillard’s appeals were denied, and the parties agreed that he had completed the Bureau of Prisons’ administrative appeal process.

Dillard’s claims

Dillard filed a petition under 28 U.S.C. § 2241, a procedure used to challenge the legality of the way a federal prisoner’s custody or sentence is being carried out. He argued that due process was violated because:

Dillard also moved for a subpoena seeking video and audio recordings of the rehearing and security footage of his being taken to the video-conference room.

Analysis

The court explained that losing good-conduct time implicates a protected liberty interest. In a disciplinary hearing that may result in that loss, due process requires advance written notice of the charges, an opportunity—subject to institutional safety and correctional concerns—to call witnesses and present evidence, and a written explanation identifying the evidence relied on and the reasons for the decision. The decision must also be supported by “some evidence,” meaning evidence in the record that could support the disciplinary finding.

The court found these requirements satisfied. Dillard received the incident report before the original hearing and again before the rehearing. He received notice of his hearing rights and had an opportunity to present arguments and evidence. The rehearing report explained the evidence and the reasons for the finding.

The court held that the letter and the reporting officer’s description of its references to Kayak tobacco and “you know who” supplied some evidence supporting DHO Gyurke’s finding. The court was not required to independently reweigh the evidence or decide whether Dillard’s explanation was more credible. It also rejected Dillard’s argument that the rehearing improperly revived the previously dismissed tobacco charge. The court stated that the constitutional protection against being tried twice for the same criminal offense does not apply to prison disciplinary proceedings and found that the remand restarted consideration of the entire incident report.

The court denied the subpoena motion because the requested recordings would shed little or no light on the claims presented in the petition. To the extent Dillard sought the recordings to support additional allegations—such as the loss of documentary evidence or lack of impartiality by DHO Gyurke—the court said those allegations had not been raised in the petition and were therefore waived.

Disposition

The court ordered that Dillard’s motion for a subpoena of the disciplinary-hearing video and audio recordings be DENIED. Magistrate Judge David T. Schultz recommended that Dillard’s petition be DENIED and that the action be DISMISSED WITH PREJUDICE. The report and recommendation stated that it was not directly appealable to the Eighth Circuit, but that objections could be filed within 14 days after service.