Wilson Gorrell v. Warden

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13322
Non-Argument Calendar
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D.C. Docket No. 2:11-cv-00213-LGW-JEG
WILSON GORRELL,
Petitioner-Appellant,
versus
WARDEN SUZANNE HASTINGS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(September 24, 2013)
Before MARTIN, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
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Wilson Gorrell, a pro se prisoner, appeals the district court’s denial of his 28
U.S.C. § 2241 petition for habeas relief. According to Mr. Gorrell, the Federal
Bureau of Prisons violated his due process rights when it disciplined him following
a positive drug test, and unlawfully discriminated against him during his
disciplinary proceedings because he is HIV-positive. On appeal, he claims that the
district court erroneously (1) concluded that his discrimination-based claims were
inappropriately raised in a § 2241 petition; (2) concluded that the BOP satisfied its
procedural due process obligations regarding notice and a hearing; (3) denied his
subpoena request; and (4) failed to review the merits of his due process claim
regarding entitlement to consideration of certain toxicology results at his
disciplinary hearing. We address each of Mr. Gorrell’s claims below.
I.
We review de novo the district court’s denial of habeas relief under § 2241.
Skinner v. Wiley, 355 F.3d 1293, 1294 (11th Cir. 2004). Mr. Gorrell first contends
that the court erred in rejecting his claims that the BOP’s actions amounted to
unlawful discrimination on the basis of his disability (HIV-positive), in violation of
the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701(a)-(c), and
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132.
A § 2241 habeas petition is the appropriate vehicle to bring challenges to the
execution of sentence. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351
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n.1 (11th Cir. 2008). Importantly, there is a “line of demarcation” between habeas
claims and civil rights claims. See Hutcherson v. Riley, 468 F.3d 750, 754 (11th
Cir. 2006) (comparing 28 U.S.C. § 2254 habeas claims and civil rights claims).
So, when an inmate raises a challenge to the “circumstances of his confinement”
rather than the execution of his sentence, the claim should be brought in a civil
rights action rather than a habeas petition. See id.The Rehabilitation Act provides that “[n]o otherwise qualified individual
with a disability in the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a). Similarly, the ADA prohibits a “public
entity” from discriminating against “a qualified individual with a disability” on
account of the individual’s disability. 42 U.S.C. § 12132. Here, the district court
did not err in rejecting Mr. Gorrell’s Rehabilitation Act and ADA claims as
improperly asserted in his § 2241 petition. Mr. Gorrell’s § 2241 petition correctly
raised his challenge to the BOP’s execution of his sentence, particularly the
removal of good-conduct time and visiting privileges. But, the claims for relief
under the Rehabilitation Act and ADA concerned not the execution of the
sentence, but instead asserted that BOP officials unlawfully took action against Mr.
Gorrell on the basis of his disability. Independent civil causes of action exist to
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remedy that alleged discrimination, so the district court did not err in ruling that
Gorrell’s Rehabilitation Act and ADA claims were inappropriately raised here.
Accordingly, we affirm as to these claims. Mr. Gorrell, of course, is free to assert
these claims in a separate action.
II.
Mr. Gorrell also argues that he did not receive adequate notice and a hearing
during the BOP proceedings, and that he was entitled to such process owing to the
“atypical and significant hardship” he endured as a result of the BOP’s actions.1
We have explained that “[d]etermining whether one was deprived of liberty
presents a unique challenge with prisoners, who are already deprived of their
liberty in the ordinary understanding of the word.” Kirby v. Siegelman, 195 F.3d
1285, 1290 (11th Cir. 1999). Procedural safeguards are owed, however, if a
prisoner is subjected to a change in the conditions of confinement “so severe that it
essentially exceeds the sentence imposed by the court,” or if a prisoner is deprived
of some consistently bestowed benefit, such as good-time credits, that “imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents
1
Mr. Gorrell also suggests that his initial drug test, out of which the instant case arose,
may have been administered in retaliation for a related case he filed in the Third Circuit. See
Gorrell v. Yost, No. 12-3404, 509 F. App’x 114 (3d Cir. Jan. 11, 2013). Because Mr. Gorrell did
not raise this claim before the district court, it was waived. See Adkins v. Warden, Holman CF,
710 F.3d 1241, 1247 (11th Cir. 2013) (holding that the state waived an argument raised for the
first time in supplemental briefing on appeal because it had not raised the argument before the
district court or in its initial brief).
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of prison life.” Id. at 1291 (citing Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct.
2963, 2976, 41 L. Ed. 2d 935 (1974)).
In Wolff, the Supreme Court set out the hearing procedures that must be
satisfied to meet the standards of due process in the prison setting. Wolff, 418 U.S.
at 556, 94 S. Ct. at 2975. According to Wolff, prisoners must receive (1) advance
written notice of the charges against them; (2) an opportunity to call witnesses and
present documentary evidence, so long as doing so is consistent with institutional
safety and correctional goals; and (3) a written statement by the factfinder
outlining the evidence relied on and the reasons for the disciplinary action. Id. at
563-67, 94 S. Ct. at 2978-80.
In Sandin v. Conner, 515 U.S. 472, 484-85, 115 S. Ct. 2293, 2300-01, 132
L. Ed. 2d 418 (1995), the Supreme Court clarified that the Wolff procedural
protections are owed if the state imposes “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life,” though it did not
elaborate on what hardships would qualify. In Kirby, however, we noted that the
deprivation of good-time credits qualifies as an “atypical and significant hardship.”
Kirby, 195 F.3d at 1291.
In light of these principles, the district court’s ruling on Mr. Gorrell’s due
process claims was sound. As an initial matter, it is undisputed that Mr. Gorrell
was deprived of good-time credits as a result of the disciplinary hearing officer’s
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(“DHO”) findings, so he was entitled, under Wolff and Kirby, to procedural due
process safeguards. Wolff, 418 U.S. at 558, 94 S. Ct. at 2976; Kirby, 195 F.3d at
1291. Wolff clearly provided that procedural protections are due when an inmate is
deprived of good-time credits, and Kirby clarified that such deprivation itself is a
qualifying hardship. Wolff, 418 U.S. at 558, 94 S. Ct. at 2976; Kirby, 195 F.3d at
1291. The BOP did not violate those safeguards, however, as the record shows
that Mr. Gorrell was given advance written notice of the charge against him, that
he was granted an opportunity to call witnesses and present documentary
evidence—and in fact, presented such evidence—and, finally, that he was issued a
written statement by the DHO outlining the evidence relied on, its reasoning, and
its findings. Mr. Gorrell was even given some protection not mandated by Wolff,
such as the right to staff assistance at the disciplinary hearing. Therefore, we
affirm the district court’s ruling as to these claims.
III.
Next, Mr. Gorrell argues that the court erred in denying his request for leave
to file a civil subpoena to obtain the actual toxicology results underlying his
positive drug-test. We disagree.
A habeas petitioner is generally “not entitled to discovery as a matter of
ordinary course,” but evidence may be obtained upon showing “good cause.”
Arthur v. Allen, 459 F.3d 1310, 1310 (11th Cir. 2006). See Rule 6(a) of the Rules
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Governing § 2254 Cases (“A party shall be entitled to invoke processes of
discovery available under Federal Rules of Civil Procedure if, and to the extent
that, the judge in the exercise of his discretion and for good cause shown grants
leave to do so, but not otherwise.”); Rule 1(a) of the Rules Governing § 2254
Cases (“The district court may apply any or all of these rules to a [§ 2241] habeas
corpus petition.”). “[G]ood cause for discovery cannot arise from mere
speculation.” Arthur, 459 F.3d at 1311.
A claim must be dismissed as moot if the issue presented is no longer “live,”
such that the courts cannot grant meaningful relief. See, e.g., Soliman v. U.S. ex
rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002). When a district court does not
expressly rule on a party’s pending motion, the entry of a final judgment against
the party, as a general matter, implicitly denies that motion. See Chalwest
(Holdings) Ltd. v. Ellis, 924 F.2d 1011, 1012 (11th Cir. 1991) (holding that
appellant's request for evidentiary hearing was denied sub silentio by district
court’s order of dismissal).
Here, Mr. Gorrell’s complaint regarding the district court’s denial of his
motion for leave to file a civil subpoena is moot because he has admitted receiving
the report at issue after filing a separate civil action against the testing laboratory—
indeed, he has attached that report to his brief to this Court. In any case, the
district court did not abuse its discretion in denying Mr. Gorrell’s motion because
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he asserted only that the documents sought were exculpatory, but “mere
speculation” alone does not satisfy the “good cause” necessary to obtain habeas
discovery. See Arthur, 459 F.3d at 1311. We affirm the district court’s denial of
Mr. Gorrell’s subpoena request.
IV.
Lastly, Mr. Gorrell argues that the district court failed to address his
contention, See D.E. 1 at 26, that he was entitled to have the DHO consider the
actual toxicology results at his disciplinary hearing, in violation of Clisby v. Jones,
960 F.2d 925 (11th Cir. 1992) (en banc). On this point, we agree with Mr. Gorrell.
In Clisby, we “instruct[ed] the district courts to resolve all claims for relief
raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. . . regardless whether habeas relief is granted or denied.” Clisby, 960 F.2d at 936.
A “claim for relief” is defined as “any allegation of a constitutional violation.” Id.When a district court fails to address all of the claims in a habeas petition, we will
“vacate the district court’s judgment without prejudice and remand the case for
consideration of all remaining claims.” Id. at 938. Later, in an unpublished case,
we extended Clisby to cover petitions filed pursuant to § 2241. See Smith v. Sec’y,
Fla. Dep’t of Corr., 432 F. App’x 843, 844-45, n.1 (11th Cir. 2011) (unpublished).
The district court did not comply with Clisby. In a report, the magistrate
judge reasoned that Mr. Gorrell’s due process rights were not violated because the
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DHO considered all of the exculpatory evidence that was presented at the
disciplinary hearing, but the magistrate did not consider Mr. Gorrell’s claim that he
had a due process entitlement to review of the actual toxicology results. Mr.
Gorrell objected to the magistrate judge’s conclusion, but the district court did not
directly the address the claim on review. Instead, the district court concluded that
Mr. Gorrell received the due process he was owed because the DHO “considered
all evidence presented at the disciplinary hearing.” Notably, however, the court
did not address or resolve the question whether the BOP or DHO had obligations
with respect to evidence not presented at the hearing, such as the actual toxicology
results. Because the court did not address Mr. Gorrell’s claim that he was entitled
to a review of the actual toxicology results underlying his positive drug test, we
vacate and remand for the limited purpose of resolving this claim.*
AFFIRMED IN PART, VACATED IN PART WITHOUT PREJUDICE
AND REMANDED WITH INSTRUCTIONS.
* We express no view on the merits of this claim.
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