Grossman v. Federal Bureau of Prisons

Background

Yitz Grossman filed a petition under 28 U.S.C. § 2241, a procedure allowing a federal prisoner to challenge the execution of a sentence, including certain disciplinary penalties affecting good-conduct credits. Grossman had been sentenced to 60 months’ imprisonment for conspiracy to commit securities fraud. He was later released from FCI Otisville to home confinement.

While incarcerated, Grossman called an approved contact and asked that person to call someone who was not on Grossman’s approved contact or visitor lists. A disciplinary hearing officer found that Grossman violated Federal Bureau of Prisons Code 297, which prohibits using a telephone in a way that circumvents staff’s ability to monitor the frequency, content, or number called. The officer ordered 27 days of good-conduct time disallowed and three months’ loss of telephone privileges.

Grossman appealed through the Bureau of Prisons’ administrative process. The regional and central offices denied his appeals. He then filed this petition, arguing that the disciplinary process violated due process because he was not properly referred by a Unit Disciplinary Committee, the hearing officer was not impartial, the finding lacked evidentiary support, and officials failed to provide him with a November 2000 memorandum concerning Code 297.

Court’s Analysis

The court explained that a prison disciplinary proceeding must provide written notice of the charges, a reasonable opportunity to present witnesses and documents, a fair and impartial hearing officer, and a written decision identifying the evidence and reasons for the penalty. The disciplinary finding must also be supported by “some evidence” in the record.

The court rejected the argument concerning referral by a Unit Disciplinary Committee. It found that Grossman received written notice, had a hearing before the disciplinary hearing officer, waived his right to call witnesses, and received a written decision explaining the evidence and reasoning. Any failure to follow internal prison rules about the preliminary committee hearing did not violate due process because Grossman received the constitutionally required protections.

The court also rejected the impartiality challenge. The regulation Grossman cited had not been in effect since 2010. The applicable regulation required that the hearing officer not be a victim, witness, investigator, or otherwise significantly involved in the incident, and Grossman did not argue that the hearing officer fell into any of those categories. The fact that the hearing officer worked with the case manager who reported the incident was not enough to show bias or that the officer had prejudged the evidence.

The court concluded that the “some evidence” standard was satisfied. It read Code 297 as covering conduct that circumvents telephone monitoring, not only the specific examples listed in the November 2000 memorandum, such as three-way calls, conference calls, or use of another prisoner’s personal identification number. The court found that Grossman’s attempt to have an unapproved person contacted could support a finding that he was trying to circumvent monitoring of whom he was calling.

Finally, the court rejected Grossman’s claim that the memorandum was withheld as exculpatory evidence. The court noted that it was uncertain whether the disclosure rule Grossman invoked applied in prison disciplinary proceedings, but held that, even assuming it did, the record showed no suppression. Grossman’s staff representative obtained the memorandum online, read it to Grossman, and allowed him to transcribe it.

Disposition

The court concluded that Grossman’s constitutional rights were not violated by the disciplinary hearing or the loss of good-conduct time. Judge Paul G. Gardephe denied the petition for a writ of habeas corpus and directed the Clerk of Court to close the case.