11-3038
    Rodriguez v. Lindsay


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
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         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Daniel Patrick Moynihan United
    States Courthouse, 500 Pearl Street, in the City of New York, on
    the 29th day of August, two thousand twelve.

    PRESENT:
              Robert A. Katzmann,
              Gerard E. Lynch,
              Denny Chin,
                   Circuit Judges.
    _____________________________________

    Nelson Rodriguez,

                            Petitioner-Appellant,

                     v.                                    11-3038

    Cameron Lindsay, United States of
    America,

                   Respondents-Appellees.
    _____________________________________

    FOR PETITIONER-APPELLANT:             Nelson Rodriguez, pro se, White
                                          Deer, PA.

    FOR RESPONDENTS-APPELLEES:            Jo Ann M. Navikas, Thomas M.
                                          Sullivan, Assistant United States
                                          Attorneys, for Loretta E. Lynch,
                                          United States Attorney for the
                                          Eastern District of New York,
                                          Brooklyn, NY.
     Appeal from the judgment of the United States District Court

for the Eastern District of New York (Amon, C.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

     Petitioner-Appellant Nelson Rodriguez, pro se and

incarcerated, appeals the district court’s denial of his 28

U.S.C. § 2241 petition for a writ of habeas corpus.   Rodriguez’s

petition alleges that a prison disciplinary proceeding, in which

he was found to have possessed a weapon and sanctioned by, inter

alia, the loss of 40 days of good time credit, violated his right

to procedural due process.   We assume the parties’ familiarity

with the underlying facts and the procedural history of the case.

     We review de novo a district court’s denial of a § 2241

petition.   See Sash v. Zenk, 

, 134 (2d Cir. 2005).

Because “[p]rison disciplinary proceedings are not part of a

criminal prosecution, . . . the full panoply of rights due a

defendant in such proceedings does not apply.”   Wolff v.

McDonnell, 

, 556 (1974).   Rather, to comport with

procedural due process, an inmate charged with a violation in a

disciplinary hearing must be given: “advance written notice of

the charges against him; a hearing affording him a reasonable

opportunity to call witnesses and present documentary evidence; a

fair and impartial hearing officer; and a written statement of

the disposition, including the evidence relied upon and the


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reasons for the disciplinary actions taken.”    Sira v. Morton, 

, 69 (2d Cir. 2004) (citing 

).

We have stressed that, in the context of such disciplinary

proceedings, “the only process due an inmate is that minimal

process guaranteed by the Constitution, as outlined in Wolff."

Shakur v. Selsky, 

, 119 (2d Cir. 2004).

     Here, the record confirms that the minimum procedural due

process requirements outlined in Wolff were satisfied and we

therefore affirm for substantially the reasons set forth by the

district court in its June 30, 2011 memorandum decision and

order.   On appeal, Rodriguez argues that, in violation of the

then-applicable Bureau of Prisons (“BOP”) regulations, he was not

presented with a copy of the incident report containing the

charges against him within 24 hours after BOP staff discovered a

sharpened toothbrush under his mattress on December 19, 2008.

See 28 C.F.R. § 541.15(a) (2010).    As noted above, however,

Rodriguez was constitutionally entitled only to the process

outlined in Wolff, see 

, and Wolff’s

relevant 24-hour notice period does not run from the perpetration

of the alleged incident, but rather works backward from the

beginning of the disciplinary hearing relating to that incident,

see 

(“Due process requires that prison

officials give an accused inmate written notice of the charges

against him twenty-four hours prior to conducting a disciplinary


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hearing.”).   While there is some discrepancy in the record

regarding the date on which Rodriguez received the incident

report, it is apparent that he received the report by January 5,

2009 at the latest, which was two days before his initial hearing

and nine days prior to his final hearing before the Discipline

Hearing Officer (“DHO”).    Accordingly, Rodriguez received

constitutionally sufficient notice of the charges against him.

     Rodriguez next argues that insufficient evidence supported

the DHO’s determination that he possessed the weapon found under

his mattress given that he was housed in an “open” dormitory unit

containing 120 other inmates, any one of which, he asserts, could

have hidden the weapon under his mattress.   Judicial review of

the written findings of a prison hearing officer’s disciplinary

ruling leading to the loss of good time credit is limited to a

determination of whether the disposition is supported by “some

evidence.”    Superintendent, Mass. Corr. Inst. v. Hill, 

, 455 (1985).   As we have noted, the “some evidence” standard

outlined by the Supreme Court in Hill “is extremely tolerant and

is satisfied if there is any evidence in the record that supports

the disciplinary ruling.”    

(quotation marks

omitted).    Here, during his disciplinary hearing, Rodriguez did

not contest that the weapon was found under his mattress, nor did

he request the testimony of any witnesses.   Instead, he simply

asserted that the weapon did not belong to him and that he had


                                  4
been “set up” by unidentified individuals.   Given the absence of

any contradictory evidence at the hearing other than Rodriguez’s

self-serving statement that he was “set up,” there is nothing to

undermine the DHO’s reasonable conclusion that Rodriguez was

responsible for the weapon found under his mattress.

      Rodriguez’s reliance on Broussard v. Johnson, 

,

877 (5th Cir. 2001), the facts of which he contends are

“identical” to his case, does not undermine our conclusion that

the DHO’s finding was supported by “some evidence.”    In

Broussard, the Fifth Circuit concluded that the discovery of a

pair of bolt cutters in the kitchen area where an inmate worked,

which was accessible to 100 other inmates, did not amount to some

evidence supporting a conviction for possessing contraband.     See

the district court noted, Rodriguez’s bunk

was not truly a “common” space of the kind contemplated in

Broussard because it was Rodriguez’s personal living area, as

opposed to his work area, and it can be reasonably expected, in

the absence of other evidence, that an inmate will monitor his

personal living space to keep it free from contraband.

      Finally, Rodriguez has waived his arguments, raised for the

first time on appeal, that the DHO rejected his request to review

security camera footage of the dormitory and that several other

inmates were within an “arm’s distance” of his bunk shortly

before the weapon was discovered under his mattress.     See Joseph


                                 5
v. Leavitt, 

, 93-94 (2d Cir. 2006) (“These arguments

are waived . . . as they were not . . . argued in the district

court.”).   Moreover, even if we were to consider these arguments,

they find no support in the record.   There is no indication in

the DHO’s report that Rodriguez requested security camera footage

at his disciplinary hearing and he affirmed, at the beginning of

the hearing, that he was “ready to proceed.”   Additionally, in

his statement at the DHO hearing, Rodriguez made no mention of

the other inmates who were allegedly in close proximity to his

bunk shortly before the weapon was discovered.   Thus, the DHO had

no opportunity or obligation to consider this purported evidence.

     We have considered all of Rodriguez’s remaining arguments

and find them to be without merit.    Accordingly, we AFFIRM the

judgment of the district court.


                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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