Ricco v. Conner , 132 F. App'x 754 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 24, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
WENDELL ELLIOT RICCO,
Petitioner - Appellant,
No. 04-3173
v. (D. Kansas)
(D.Ct. No. 03-CV-3036-RDR)
N.L. CONNER, Warden; K. SWEET,
Officer,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Wendell Elliot Ricco, a federal prisoner appearing pro se, appeals from the
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
district court's dismissal of his petition for a writ of habeas corpus brought
pursuant to 28 U.S.C. § 2241. The petition challenges Ricco’s disciplinary
conviction and resultant sanctions for violating Bureau of Prisons (BOP) Code
205. See 28 C.F.R. § 541.13 Table 3. Our jurisdiction arises under 28 U.S.C. §
2253 (a), and we affirm
I. B ACKGROUND
Ricco, an inmate at Leavenworth, was found masturbating in his cell by a
prison officer during the 3 a.m. bed count on May 25, 2002. According to the
officer’s report, Ricco “was sitting on the edge of his bunk stroking his penis with
his right hand. He had his boxers pulled down with his penis fully exposed. His
cell lights were on and he made no attempt to stop what he was doing.” (R., Doc.
1, Ex. A.) Ricco was charged with “Engaging in a sexual act” in violation of 28
C.F.R. § 541.13, Table 3, code 205. He was found guilty by a Discipline Hearing
Officer in June 19, 2002, following administrative discipline proceedings.
Sanctions of some form were imposed.
Ricco filed a habeas petition in the United States District Court for the
District of Kansas under 28 U.S.C. § 2241 claiming that he was unlawfully
disciplined for engaging in a sex act. He argued that masturbation is not a “sex
act” prohibited by 28 C.F.R. § 541.13, Table 3, code 205. The district court
dismissed Ricco’s Habeas petition, holding that the behavior described in the
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incident report was sufficient to establish the commission of a sexual act in
violation of 28 C.F.R. § 541.13, Table 3, code 205. Ricco filed a Motion for
Reconsideration on December 3, 2003, renewing his original argument. The
district court denied Ricco’s Motion for Reconsideration on April 29, 2004. The
district court granted Ricco leave to proceed on appeal in forma pauperis. 1 Ricco
appeals from the order of dismissal and the order denying the motion for
reconsideration.
II. D ISCUSSION
Habeas proceedings are typically brought under § 2241 to challenge the
legality of custody and secure either release from illegal custody or a shortened
period of confinement. Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir. 1993).
However, “a § 2241 attack on the execution of a sentence may challenge some
matters that occur at prison, such as deprivation of good-time credits and other
prison disciplinary matters.” McIntosh v. United States Parole Comm’n, 115 F.3d
809, 811 (10th Cir. 1997). This is because prison disciplinary proceedings, such
as the deprivation of good-time credits, affect the fact or duration of the
prisoner’s custody. Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973).
Additionally, prisoners have a protected property interest in good time credits
A certificate of appealability is not required for habeas corpus relief under 28
1
U.S.C. § 2241. Bradshaw v. Story, 86 F.3d 164, 165-66 (10th Cir. 1996).
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which requires due process procedural protections before they can be revoked.
Wolff v. McDonnell, 418 U.S. 539, 557 (1974). To comport with the minimum
requirements of procedural due process, the findings of the prison disciplinary
board must be supported by “some evidence in the record.” Superintendent,
Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).
Ricco was found in violation of a High Category offense—engaging in
sexual acts. 28 C.F.R. § 541.13, Table 3, code 205. High Category offenses are
punishable by sanctions including parole date rescission, loss of good time
credits, disciplinary transfer, segregation, monetary restitution, loss of privileges,
change of quarters, removal from programs and group activities, loss of job, and
the impoundment of personal property. 28 C.F.R. § 541.13, Table 3. Ricco
argues that masturbation is not prohibited by 28 C.F.R. § 541.13, Table 3, code
205. That provision prohibits prisoners from “engaging in sexual acts.”
On appeal, Ricco argues the term “sexual acts” should be given the
definition found in the criminal statutes. Specifically, he points to 18 U.S.C. §
2246(2) where “sexual act” is defined as contact between one person’s penis,
mouth, hand or object and another’s genitals or anus. He argues the prohibited
sexual acts necessarily require the involvement of another person and thus,
masturbation is not prohibited by 28 C.F.R. § 541.13, Table 3, code 205.
It is unclear from the record, however, whether Ricco has been denied good
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time credits or subjected to another form of discipline which affects the duration
of his imprisonment. Where a disciplinary action does not “work a major
disruption in [a prisoner’s] environment” or “inevitably affect the duration of his
sentence,” the prisoner has not suffered a hardship that triggers due process
protections. Sandin v. Conner, 515 U.S. 472, 486-87 (1995). Ricco’s petition for
habeas is devoid of any clear statement describing the nature of the disciplinary
sanction. The district court specifically noted that “Petitioner does not specify
whether he was penalized by the loss of good time credits.” (R., Doc. 5 at 2.)
The only disciplinary action apparent in the record is Ricco’s claim that his
“record and file will be damage [sic] for life as well as his character ‘assassinated
FOREVER![’]” (R., Doc. 7 at 2.) Character assassination does not affect the
duration of Ricco’s imprisonment nor is it a formal disciplinary action and thus is
not subject to review under § 2241. Additionally, the alleged damage to his
“record and file”, standing alone, is insufficient disciplinary action for purposes
of § 2241 as there is no indication that it affects the duration of his imprisonment.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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