Kapordelis v. Myers ( 2021 )

Case: 19-30968 Document: 00516077833 Page: 1 Date Filed: 11/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 2, 2021
No. 19-30968 Lyle W. Cayce
Clerk
Gregory C. Kapordelis,
Petitioner—Appellant,
versus
Rodney Myers,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:19-CV-275
Before King, Higginson, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
Early one morning, federal inmate Gregory Kapordelis broke his
government-issued continuous positive airway pressure mask (his CPAP
mask). A Discipline Hearing Officer (DHO) found that Kapordelis violated
Bureau of Prisons (BOP) Disciplinary Code 218, which prohibits
“[d]estroying, altering or damaging government property . . . having a value
in excess of $100.” 28 C.F.R. § 541.3(b), Table 1 (2018). Deprived of
twenty-seven days of good conduct time, Kapordelis filed a 28 U.S.C. § 2241habeas petition challenging his disciplinary conviction. The district court
denied Kapordelis’s petition, and he appeals. We AFFIRM.
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No. 19-30968
I.
On August 9, 2018, Kapordelis reported to a medical unit at Oakdale
Federal Correctional Institution (Oakdale), where he is incarcerated, and
notified staff that he broke his CPAP mask. Staff members informed
Kapordelis that he was not authorized to be in the medical unit, but he
remained there for some time before leaving. He returned to the unit later
that day, and the Operations Lieutenant was called to remove him.
An incident report was filed, and the matter was referred to the DHO
for a hearing on disciplinary charges of being in an unauthorized area
(Disciplinary Code 316), refusing to obey an order (Disciplinary Code 307),
and destroying, altering or damaging government property in excess of $100
(Disciplinary Code 218). See 28 C.F.R. § 541.3(b). At the hearing, held
August 27, 2018, Kapordelis stated that he awoke suffering from a “coughing
fit” and tried to remove his CPAP mask. In doing so, he said the mask “just
snapped.” He contended that he did not deliberately break the mask and
that, in the twelve years he had been wearing a CPAP mask, he had never
broken one.
Several “statements”—in the form of emails from witnesses
responding to inquiries from the DHO—were submitted at the hearing,
including one from Dr. Kenneth Russell, the Oakdale inmate physician. The
DHO had asked Dr. Russell prior to the hearing whether “it [was] likely an
inmate could break a CPAP mask.” Dr. Russell responded:
I would have to see it first, some of these are made of hard
plastic. Most of them you can [sit] on, and not break them. In
general use, unless it is an old mask, or unless it did not fit their
face, it would have to be intentional for it to break.
In addition to Dr. Russell’s email, the DHO considered a statement from a
CPAP Supply USA representative recorded in the initial incident report.
The CPAP representative stated to Oakdale medical staff that “it is far from
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common for the mask to just break unless it is user error.” According to the
record, the DHO also inspected Kapordelis’s broken CPAP mask.
After receiving the evidence, the DHO issued a report that dismissed
the charges against Kapordelis for refusing to obey an order and being in an
unauthorized area but sustained the charge for damaging government
property. The DHO acknowledged Kapordelis’s assertions to the contrary
but found that the CPAP representative’s statement coupled with Dr.
Russell’s statement supported a finding that Kapordelis violated Disciplinary
Code 218. Consequently, the DHO sanctioned Kapordelis with a loss of
twenty-seven days of good conduct time.
Kapordelis administratively appealed, contending that the evidence
that he broke the mask accidentally was unrebutted and that the CPAP
representative’s and Dr. Russell’s statements were insufficient to show that
Kapordelis deliberately broke the mask. Additionally, he asserted that the
“DHO inspected the broken mask at the hearing” and “observed” that the
mask part that broke was the plastic “flexible spacebar,” which is “designed
to bend when the mask is removed” and “is the most fragile part of the CPAP
mask.” He speculated that replacing the spacebar “would likely cost less
than $20,” well below Disciplinary Code 218’s $100 threshold. Kapordelis
also asserted that Dr. Russell never actually made the statement on which the
DHO relied in sustaining the property-damage charge. Kapordelis’s
administrative appeal was denied.
In March 2019, Kapordelis filed a pro se petition for habeas corpus
pursuant to 28 U.S.C. § 2241 in the Western District of Louisiana against
Rodney Myers, the warden at Oakdale. In his § 2241 petition, Kapordelis
asserted that his due process rights were violated because no evidence was
presented that he intentionally destroyed his CPAP mask and the DHO relied
on a statement that, according to Kapordelis, Dr. Russell never made.
Kapordelis also contended that revocation of good-time credits for
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accidentally breaking a mask that he required because of a disability violated
the Americans with Disabilities Act. He sought expungement of the incident
report, restoration of good conduct time, and a transfer to a prison facility
closer to his family in Tampa, Florida.
In opposition, the respondent countered that Kapordelis failed to
demonstrate that his due process rights had been violated. The respondent
cited the DHO’s post-hearing declaration, which stated that “explicit intent
to destroy government property is not a necessary threshold for finding an
individual guilty.” Relying on this interpretation, the respondent asserted
that Kapordelis’s admission that the CPAP mask broke while in his
possession and the statement given by the CPAP representative were
“sufficient to find [Kapordelis] guilty of wrongfully destroying government
property, either through explicit intention or negligent and/or improper
use.”
The magistrate judge to whom the case was assigned recommended
that Kapordelis’s § 2241 application be denied and dismissed with prejudice.
Based on the disciplinary hearing evidence and the BOP regional director’s
appellate finding that Kapordelis had failed to present any evidence to
support his assertion that the damage to the mask was accidental, the
magistrate concluded that “the evidence [was] sufficient to sustain a
disciplinary conviction.” Furthermore, the magistrate found that Kapordelis
failed to provide any support for his allegation that Dr. Russell did not make
the statement attributed to him.
Over Kapordelis’s objections, the district court adopted the
magistrate judge’s recommendation and dismissed Kapordelis’s § 2241
application. The district court observed that “[t]he DHO’s findings clearly
point[ed] to a finding of intentional damage, as she repeatedly cited Dr.
Russell’s statement that the mask generally would not break without an
‘intentional’ act.” The district court ultimately held that Kapordelis’s
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admission that the mask broke in his possession, coupled with the statements
from the CPAP representative and Dr. Russell establishing that “this would
not ordinarily occur on accident,” were sufficient to support the disciplinary
conviction under the “some evidence” standard. Kapordelis challenged the
district court’s ruling in a timely motion under Federal Rule of Civil
Procedure 59(e), repeating his prior arguments. The district court denied
that motion, and Kapordelis timely appealed.
II.
Kapordelis raises four issues on appeal: (1) whether the district court
erred in finding there was “some evidence” from which the DHO could
conclude that Kapordelis intentionally broke his CPAP mask; (2) whether
Disciplinary Code 218 provided fair notice that it proscribes unintentional
conduct resulting in damaged property; (3) whether there was “some
evidence” to support the DHO’s finding that Kapordelis caused damage in
excess of $100; and (4) whether the district court erred by denying
Kapordelis’s Rule 59(e) motion. 1 We address each issue in turn.
A.
Kapordelis first contends that the district court erred in finding there
was sufficient evidence for the DHO to conclude that he intentionally
damaged his mask in violation of Disciplinary Code 218. We review this issue
of law de novo. Teague v. Quarterman, 482 F.3d 769, 773 (5th Cir. 2007);
Hudson v. Johnson, 242 F.3d 534, 535 (5th Cir. 2001).
1
Kapordelis does not address his claims arising under the Americans with
Disabilities Act and alleging a denial of due process on the ground that Dr. Russell’s
statement was falsely attributed to him. Therefore, he has abandoned these claims. See
Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993) (observing that although this court
liberally construes pro se briefs, arguments must be briefed to be preserved).
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Because Kapordelis has a liberty interest in his accumulated good time
credits, revocation of the credits must comply with minimal requirements of
due process. See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 453–
56 (1985); Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000);
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). The Supreme Court has
held that due process is satisfied in this context if, inter alia, “some evidence
supports the decision by the prison disciplinary board to revoke good time
credits.” Hill, 472 U.S. at 455. Under this standard, “prison 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) (per curiam) (emphasis added).
This court is not required to examine the entire record of a disciplinary
proceeding, independently assess witness credibility, or weigh the evidence
to determine whether “some evidence” supports the DHO’s decision. See
Hill, 472 U.S. at 455–56. Rather, we examine whether the finding of guilt has
the “support of some facts or any evidence at all.” Gibbs v. King, 779 F.2d
1040, 1044 (5th Cir. 1986) (internal quotation marks and citation omitted).
Only when the record is “so devoid of evidence that the findings of the
[DHO] were without support or otherwise arbitrary” will we grant habeas
relief on this ground. Hill, 472 U.S. at 457 (finding the “some evidence”
standard met even where there was “no direct evidence” and the existing
evidence was “meager”).
Kapordelis contends that the evidence the DHO cited in support of
her decision fails to establish “some evidence” of intentional damage to his
CPAP mask. He specifically challenges three things: First, the DHO relied
on Kapordelis’s admission that the mask broke while in his possession. But
Kapordelis never admitted to damaging the mask intentionally. Instead, he
stated that the mask “just snapped” when he removed it amidst a coughing
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fit. We agree with Kapordelis that this “admission” does not, by itself,
suffice as “some evidence” of intentional conduct.
Second, the DHO relied on a CPAP sales representative’s statement
that “it is far from common for the mask to just break unless it is user error.”
The district court found this to be evidence that a CPAP mask “ordinarily
would not [break] on accident.” However, Kapordelis contends that, read
literally, the CPAP sales representative’s statement merely suggests that it is
uncommon for a mask to break unless the user accidentally or negligently
does something to break it. We tend to agree. Even if the phrase “user
error” includes intentional conduct, the CPAP sales representative’s
statement does not support the proposition that a mask would ordinarily
break only due to intentional conduct. At essence, it is merely a truism that
does not tend to prove or disprove the proposition that Kapordelis
intentionally damaged his CPAP mask.
Thirdly, the DHO’s report repeatedly cited Dr. Russell’s conclusion,
in response to whether “it [was] likely an inmate could break a CPAP mask,”
that “[i]n general use, unless it is an old mask, or unless it did not fit their
face, it would have to be intentional for it to break.” This is where
Kapordelis’s argument falters.
He asserts that Dr. Russell’s statement is inapplicable because it
pertains to the “hard plastic” part of the CPAP mask rather than its “flexible
spacebar.” But even assuming the mask’s damage was limited to the
spacebar, there is no evidence in the record indicating that the spacebar was
more susceptible to breaking than the rest of the mask, or that it was not
likewise composed of “hard plastic” as characterized by Dr. Russell in his
statement.
Kapordelis further contends that Dr. Russell’s statement is irrelevant
because it was based on several caveats that were never verified. He points
out that Dr. Russell conditioned his opinion on the age of the CPAP mask
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and whether the mask fit the face of the wearer. Although there is nothing to
indicate that Dr. Russell ever examined Kapordelis’s CPAP mask, we cannot
say that these limitations deprive his statement of all evidentiary value. The
DHO’s report and her subsequent declaration indicate that she considered,
among other evidence, both Kapordelis’s broken CPAP mask and Dr.
Russell’s statement at the hearing. Thus, the DHO had the opportunity
personally to observe Kapordelis’s CPAP mask and evaluate the caveats in
Dr. Russell’s statement against it.
This is enough to meet the “some evidence” standard that governs
our review. In other words, “the record is not so devoid of evidence that the
findings of the [DHO] were without support or otherwise arbitrary.” Hill,
472 U.S. at 457. A prison official’s disciplinary decision “will be overturned
only where there is no evidence whatsoever to support [it].” Reeves, 19 F.3d
at 1062. Even discounting the other evidence relied upon by the DHO, her
finding of culpability was supported, at a minimum, by Dr. Russell’s
statement that “it would have to be intentional for [the mask] to break,” and
the DHO’s inspection of the broken mask itself. We thus agree with the
district court that there was sufficient evidence to support a finding of
intentional damage to Kapordelis’s CPAP mask under Disciplinary Code
218.
B.
Kapordelis contends that Disciplinary Code 218 is impermissibly
vague because it fails to provide fair notice that it proscribes damage caused
by unintentional conduct. 2 But Kapordelis forfeited this issue because, as he
2
In her disciplinary hearing report, the DHO found that Kapordelis violated
Disciplinary Code 218 without specifying whether she based her finding on intentional or
unintentional conduct. In her subsequent declaration submitted in response to
Kapordelis’s § 2241 petition, the DHO clarified that Kapordelis violated the rule by
breaking his CPAP mask, regardless of “whether done intentionally or via negligent and/or
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concedes in his brief, it “is being raised for the first time on appeal.” See
Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021). And he has
failed otherwise to show that “a miscarriage of justice would result from our
failure to consider [the issue].” AG Acceptance Corp. v. Veigel, 564 F.3d 695,
700 (5th Cir. 2009) (internal quotation marks and citation omitted).
Irrespective of forfeiture, because we agree with the district court that there
was “some evidence” to support a finding of intentional damage to
Kapordelis’s CPAP mask, it is also unnecessary for us to address this issue
further.
C.
Kapordelis next asserts that the DHO’s finding that he caused damage
in excess of $100 was not supported by “some evidence” because he only
broke the mask’s “flexible spacebar,” which he asserts “would likely cost
less than $20 to replace.” Again, “[w]hether there is ‘some evidence’ is an
issue of law that we review de novo.” Teague, 482 F.3d at 773 (citing Richards
v. Dretke, 394 F.3d 291, 293 (5th Cir. 2004)).
According to the DHO’s report, evidence was presented at the
disciplinary hearing that a CPAP mask is valued at $200. While Kapordelis
asserts that his sworn pleadings support a finding that any damage was
limited to the mask’s spacebar, which he says costs $20, he has neither
provided any evidence of the actual cost to replace the spacebar nor
established that the spacebar was detachable and capable of being purchased
separately from the more expensive mask. To the contrary, the record shows
that Kapordelis was issued an entirely new CPAP mask in August 2018. And
the DHO observed Kapordelis’s broken mask but made no findings that the
improper use . . . .” The DHO averred that “explicit intent to destroy government
property is not a necessary threshold for finding an individual guilty of violating [BOP]
Disciplinary Code 218.”
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damage was minimal or less than the mask’s $200 value. Based on the
foregoing, we find that the DHO’s determination that Kapordelis caused
damage in excess of $100 was supported by “some evidence.”
D.
Finally, Kapordelis challenges the district court’s denial of his Rule
59(e) motion, which we review for an abuse of discretion. Dearmore v. City
of Garland, 519 F.3d 517, 520 (5th Cir. 2008). “A Rule 59(e) motion must
clearly establish either a manifest error of law or fact or must present newly
discovered evidence and cannot raise issues that could, and should, have
been made before the judgment issued.” Advocare Int’l LP v. Horizon Labs.,
Inc., 524 F.3d 679, 691 (5th Cir. 2008) (internal quotation marks and citation
omitted). Those conditions are not met here.
The district court denied Kapordelis’s Rule 59(e) motion upon
finding there was “no cause to alter its judgment.” On appeal, Kapordelis
does not point to any specific error in the district court’s denial of his motion.
Rather, he recognizes that “[t]he issues raised in [his] Rule 59(e) pleading
are precisely the same issues which are being raised (among others) in the
instant appeal.” Because we have already addressed Kapordelis’s
contentions in our discussion above, we conclude for the same reasons that
the district court did not abuse its discretion in denying Kapordelis’s Rule
59(e) motion.
* * *
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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