Crosby v. Fox ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 22, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GREGORY D. CROSBY, a/k/a Gregory
D. Cosby,
Petitioner - Appellant,
v. No. 18-1001
(D.C. No. 1:17-CV-00473-STV)
JACK FOX, Warden, (D. Colo.)
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
_________________________________
Gregory Crosby, a federal prisoner, appeals the district court’s denial of his
habeas petition brought under 28 U.S.C. § 2241. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
I
An incident report alleged that, on May 20, 2016, while incarcerated at a
federal penitentiary in Pennsylvania, Crosby committed three violations: interfering
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
with staff, refusing an order, and insolence. According to the report, Crosby refused
to return a food tray when ordered to do so, and responded to a correctional officer:
“Fuck you, you white ass country cracker you will get them back when I’m good and
ready.” Crosby was advised of his rights related to the disciplinary process and given
the opportunity to respond.
The report was referred to the Unit Disciplinary Committee for a hearing
before the Discipline Hearing Officer (“DHO”). Although the DHO dismissed the
charge of interfering with staff, he found that Crosby committed the remaining
violations. As to each violation, the DHO imposed a loss of fourteen days of good
conduct time; fifteen days of disciplinary segregation; and a loss of ninety days of
commissary, telephone, and visiting privileges.
Crosby then filed a 28 U.S.C. § 2241 application for habeas relief in district
court.1 In an amended application, Crosby challenged the disciplinary proceeding on
several grounds. After ordering a response, the district court denied Crosby’s
application. This timely appeal followed.
II
Because Crosby is a federal prisoner, “a certificate of appealability is not
required to consider the district court’s denial of a writ under 28 U.S.C. § 2241.”
Bledsoe v. United States, 384 F.3d 1232, 1235 (10th Cir. 2004). “When reviewing
1
Crosby originally filed in the U.S. District Court for the Middle District of
Pennsylvania, but in November 2016 he was transferred to the federal penitentiary in
Florence, Colorado. The case was accordingly transferred to the U.S. District Court
for the District of Colorado.
2
the denial of a habeas petition under § 2241, we review the district court’s legal
conclusions de novo and accept its factual findings unless clearly erroneous.” al-
Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir. 2013).
“It is well settled that an inmate’s liberty interest in his earned good time
credits cannot be denied without the minimal safeguards afforded by the Due Process
Clause of the Fourteenth Amendment.” Howard v. U.S. Bureau of Prisons, 487 F.3d
808, 811 (10th Cir. 2007) (quotations omitted). “Prison disciplinary proceedings are
not part of a criminal prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
But due process does require “notice of the charges, an opportunity to present
witnesses and evidence in defense of those charges, and a written statement by the
factfinder of the evidence relied on and the reasons for the disciplinary action.”
Gwinn v. Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004). Moreover, “there must be
some evidence to support the panel’s decision, and the decisionmaker must be
impartial.” Id. (citation omitted).
On appeal, Crosby argues that there was insufficient evidence in the record to
support the DHO’s decision.2 Specifically, he objects to the correctional officer’s
account of events. But for purposes of this appeal, “the relevant question is whether
there is any evidence in the record that could support the conclusion reached” by the
DHO. Howard, 487 F.3d at 812. That standard is satisfied. The DHO determined
2
Because Crosby is pro se, we hold his pleadings to “a less stringent standard
than formal pleadings drafted by lawyers” but do not “assume the role of advocate
for” him. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
3
that the factual averment of the correctional officer was credible—a decision that the
DHO was entitled to make. See Mitchell v. Maynard, 80 F.3d 1433, 1443 (10th Cir.
1996).
Crosby also argues that that his obscene statement to the correctional officer
consisted only of non-insolent words protected by the First Amendment. But
“backtalk by prison inmates to guards . . . is not constitutionally protected.” Kervin
v. Barnes, 787 F.3d 833, 834 (7th Cir. 2015); see also Turner v. Falk, 632 F. App’x
457, 460 (10th Cir. 2015) (unpublished) (collecting cases). Crosby insists that the
DHO failed to consider the benign definition of “cracker” offered in the dictionary.
But the DHO did consider this argument; he simply was not persuaded by it.
III
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
4