David Zebrowski v. Archie Longley ( 2014 )

Case: 13-60191 Document: 00512486977 Page: 1 Date Filed: 01/02/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-60191 FILED
Summary Calendar January 2, 2014
Lyle W. Cayce
Clerk
DAVID ZEBROWSKI,
Petitioner–Appellant,
v.
ARCHIE LONGLEY, Warden,
Respondent–Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:11-CV-82
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
David Zebrowski, federal prisoner # 34161-083, appeals the dismissal of
his 28 U.S.C. § 2241 petition challenging his prison disciplinary conviction for
refusing to obey an order and the resulting loss of good time credit. We review
the district court’s dismissal de novo. Garland v. Roy, 615 F.3d 391, 396 (5th
Cir. 2010).
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-60191
The respondent asserts that several of the arguments raised by
Zebrowski were not properly raised in the district court, and Zebrowski
disputes this contention. Because this issue is not clear and Zebrowski’s
arguments fail on their merits, we do not reach this issue.
Zebrowski raises multiple arguments asserting that the prison
disciplinary proceeding violated his due process rights. He contends that the
incident report and investigation report were factually inaccurate. He
maintains that the proceedings before the unit disciplinary committee (UDC)
and the disciplinary hearing officer, Unit Manager Truex (DHO Truex) were
arbitrary and unfair because the UDC had the incident report rewritten to
change a charge of threatening another with bodily harm to a charge of assault
with minor injury, even though there was no evidence that an assault with
minor injury occurred, and because DHO Truex based his finding that
Zebrowski had refused to obey an order on the inaccurate incident report. He
contends that the hearing violated his due process rights because a witness he
requested, inmate Adams, was not available at the hearing and because DHO
Truex did not view the security camera footage of the incident.
Zebrowski cannot show that he was prejudiced by the alleged due process
violations. His allegations of inaccuracies in the incident report and
investigation report concerned the charge of threatening another with bodily
harm that was changed to assault with minor injury. However, DHO Truex
dismissed that charge, and Zebrowski received no sanction for that charge.
Likewise, he cannot show prejudice from the UDC’s having the charge changed
from threatening another with bodily harm to assault with minor injury
because that charge was not sustained. Zebrowski also cannot show prejudice
arising from DHO Truex’s failure to view the security camera footage or have
Adams available as a witness. Zebrowski does not allege that the security
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No. 13-60191
camera footage would have had audio of the exchange between him and Officer
Parks that led to the disciplinary charges, and Adams admitted in an affidavit
that he did not hear the full exchange between Zebrowski and Officer Parks.
Thus, neither the security camera footage nor the testimony of Adams would
have shed any light on the only issues relevant to the disciplinary charge on
which Zebrowski was found guilty: whether Officer Parks ordered Zebrowski
to return to the door and whether Zebrowski obeyed that order. As Zebrowski
cannot show that he was prejudiced by these alleged due process violations, he
was not entitled to relief based upon them. See Hallmark v. Johnson, 118 F.3d
1073, 1080 (5th Cir. 1997).
While Zebrowski argues that DHO Truex could not have relied upon the
incident report because it was false, he has not shown that DHO Truex’s
decision was not supported by some evidence. Although Zebrowski has made
arguments that, if true, would show that part of the incident report was
inaccurate, he has not shown that the portions of the incident report
concerning the refusal to obey an order charge were inaccurate. Thus, what
was before DHO Truex was Officer Parks’s statement that she gave an order
that Zebrowski refused to obey and Zebrowski’s denial that he had disobeyed
an order given by Officer Parks. “[P]rison disciplinary proceedings will be
overturned only where there is no evidence whatsoever to support the decision
of the prison officials.” Reeves v. Pettcox, 19 F.3d 1060, 1062 (5th Cir. 1994).
As there was at least some evidence to support the disciplinary conviction,
Zebrowski has not shown a due process violation. See Superintendent, Mass.
Corr. Inst. v. Hill, 472 U.S. 445, 455-56 (1985).
In addition to raising due process claims, Zebrowski asserts that his
prison disciplinary conviction violated BOP regulations. He maintains that
DHO Truex did not have the authority under BOP policy to strip him of 14
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No. 13-60191
days of good time credit because it was his first moderate level offense within
the appropriate year. He additionally asserts that the investigation of the
incident was not completed within 24 hours of the appointment of the
investigating officer as required by BOP policy.
Zebrowski has not shown that the BOP regulations in question were
violated. The relevant BOP policy concerning the loss of good time credit
provides that for “Moderate Category Offenses,” an inmate should lose “[a]
minimum of 14 days . . . for each act committed if the inmate has committed
two or more moderate severity level offenses during the current anniversary
period.” That policy, however, does not state the maximum loss of good time
credit that can be imposed. Accordingly, it does not prohibit the loss of 14 days
of good time credit for a first moderate category offense.
The relevant BOP policy concerning the timing of the investigation
report provides that “[t]he investigation should be finished within 24 hours
after the appointment” of the investigating officer. The policy however, states
only that the investigation “should” be finished within 24 hours, not that it is
required to be finished within 24 hours. Accordingly, Zebrowski has not shown
that this policy was violated.
Furthermore, even if Zebrowski could show that BOP policies were
violated, this would not entitle him to relief. A prison’s “failure to follow its
own procedural regulations does not establish a violation of due process,
because constitutional minima may nevertheless have been met.” Jackson v.
Cain, 864 F.2d 1235, 1251 (5th Cir. 1989) (internal quotation marks and
citation omitted).
AFFIRMED.
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