Tоrrance Jones, a federal prisoner, admits to pushing prison guard Richard Loftus during an altercation at the Federal Correctional Institution in Miami, Florida in 2006. Jones was found guilty of assault at his ensuing disciplinary hearing and was sanctioned with the loss of 14 days of good time credit. After exhausting his administrative appeals, Jones petitioned for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2241, claiming that he was denied due process at the disciplinary hearing. The district court denied the petition. We affirm.
*843 I. Background
Jones is currently serving a 30-year sentence on federal drug trafficking-charges. On August 31, 2006, Correctional Officer Richard Loftus escorted Jones to the Special Housing Unit (“SHU”) at the Miami Federal Correctional Institution. To reach the SHU, Loftus and Jones needed to cross the open compound. Generally, inmates are not handcuffed in an open compound so as not to render them vulnerable to attack by other inmates. Nevеrtheless, Loftus ordered Jones to cuff up while the two were in the open compound. Jones refused, telling Loftus he would do so if the compound was closed. Loftus physically attempted to handcuff Jones twice, and twice Jones pulled away. Loftus then pushed Jones up against the SHU grill. According to Jones, Loftus pressed his forearm on Jones’s throat, pinning him against the SHU grill. Jones pushed Loftus away. Eventually, Loftus cuffed Jones. Counselor Jose Cabrera witnessed the incident, whiсh also was captured on surveillance video. Following the incident, Jones complained of tenderness at his lower throat and neck area and received medical treatment.
Later on the 31st, Loftus filed an incident report, citing Jones for assaulting another person in violation of code 224, and refusing to obey an order in violation of code 307. See 28 C.F.R. § 541.3. The Bureau of Prisons (“BOP”) suspended its internal disciplinary process while the FBI investigated the incident and the United Stаtes Attorney’s Office determined whether to criminally prosecute Jones. The U.S. Attorney decided not to charge Jones on September 13, 2006. Jones received a copy of the incident report that same day.
A Unit Disciplinary Committee (“UDC”) hearing regarding the incident was initiated on September 20, 2006. The UDC’s report indicates that Jones requested no witnesses at that time, but Jones maintains that he told Counselor Roche (who conducted the UDC hearing) that he had two witnesses. According to Jones, he knew only the witnesses’ nicknames, and Roche promised to try and identify the men. Jones heard nothing further from Roche.
The UDC referred the case to Detention Hearing Officer (“DHO”) Yida Posada. Jones’s DHO hearing was convened and extended on three occasions in October 2006. The DHO’s notes from one of those occasions states “Tyrone Walker, witness no reply.” She does not recall the meaning of that note.
The DHO hearing eventually was held оn October 23, 2006. David Tosana served as Jones’s staff representative. Jones had a brief meeting with Tosana — his first and only meeting with his representative — pri- or to the hearing. At that time, Jones asked that Tosana view the surveillance video of the incident. Jones also told Tosana that he wanted an inmate, Irvin Green, to testify at the DHO hearing. Jones contends that he told Tosana that Green could provide the name of a second witness. That individual has since been identifiеd as Yves St. Hilaire. However, Tosana does not remember Jones mentioning another witness, and St. Hilaire did not testify at the DHO hearing. The DHO’s report indicates that Green was the only witness Jones requested. The DHO’s notes from October 23 state: “Witness (Lrvin Green) the other name is incorrect”; she has no recollection of what that note meant. Jones maintains that he would have requested a third witness as well, an inmate named Jorge Masvidal, had Masvidal not been released prior to the DHO hearing, on September 20, 2006. Jones never mentioned Masvidal to Tosana or the DHO.
After Jones and Tosana met, there was a several-hour recess during which Tosana *844 viewed the surveillance video and prepared a memorandum for the DHO describing its contents. Jones was not permitted to watch the video. Tosana’s memorandum stated in relevant part:
Counselor Jose Cabrera was standing in front of the grill area when I observed Officer Richard Loftus S.O.S. escorting inmаte Torrence [sic] Jones (19267-018) to Special Housing Unit. Inmate Jones and Officer Loftus appeared to be struggling as they approached the Grill area. It appeared as though Officer Loftus was attempting to apply restraints on inmate Jones and inmate Jones appeared to be resisting by walking away from Officer Loftus and not placing his hands behind him.... Officer Loftus attempted to pin inmate Jones’ chest to the SHU grill and cuffing [sic] him, but inmate Jones again resisted by pulling аway and turning around. Officer Loftus then pushed inmate Jones in the chest and pinned him against the grill area by placing his left forearm on inmate Jones’ neck (throat area). At that time inmate Jones placed both hands on Officer Loftus’ chest and pushed Officer Loftus away from him.
Tosana also interviewed Green. Jones agreed to have Green’s testimony presented through a statement rather than have Green testify in person. Therefore, Tosana prepared а memorandum for the DHO describing Green’s statements. Green did not testify about the August 31 incident. Rather, he stated that Loftus generally was aggressive towards and disrespectful of inmates.
In addition to Tosana’s two memoranda, the DHO had before her a statement from Cabrera, the eyewitness. Cabrera stated, in relevant part, that he observed Jones refuse Loftus’s order to cuff up “because the compound was not closed and that was the rules.” He further stated that Jones pulled away from Loftus twice when Loftus tried to cuff him, and that Loftus then “placed the inmate against the Special Housing grill. The inmate spun around and placed both hands on officer Loftus. The inmate push[ed] officer Loftus back hard.”
Also before the DHO was a description of the surveillance video prepared by Bob Wenzler, a Special Investigative Lieutenant. That memo reads, in relevant part:
Richard Loftus, Senior Officer Specialist, attempted to plaсe hand restraints on inmate [Jones]. The video further revealed, inmate Jones resisted officer Loftus’ attempt to place restraints on him by spinning away from Loftus on two occasions. The third time officer Loftus put inmate Jones against the Special Housing Unit grill door. Inmate Jones then assaulted officer Loftus by pushing him away which cause[d] officer Loftus to almost lose his balance. Officer Loftus then regained his balance[,] then restrained inmate Jones and escorted him into the Special Housing Unit.
At the hearing, Jones gave his account of the incident, stating that Loftus “kept on trying to cuff me up,” and that Loftus “put his forearm against my windpipe with force and I pushed him away.” Jones further stated that he pushed Loftus in order to stop Loftus’s assault.
The DHO found Jones guilty of both violations. Her report states that in reaching that conclusion she considered Cabrera’s statement, Wenzler’s memorandum, and Tosana’s memorandum concerning the video. At an evidеntiary hearing held before Magistrate Judge Philip M. Frazier on December 21, 2009, the DHO testified that she also reviewed the inmate injury assessment report, which described Jones’s injuries from the incident, and that her failure to list it among the documentary evidence she considered was an over *845 sight. In her written opinion, the DHO also considered Jones’s position that he was protecting himself against Loftus’s assault, as well as his admission that he pushed Loftus. She concluded that “the fact still remains thаt after resisting to be restrained, [Jones] pushed a staff member with force. This constitutes an act of aggression.” The DHO sanctioned Jones with (among other things) the loss of 14 days of good conduct time. Jones exhausted internal appeals of that disciplinary decision.
On September 24, 2007, Jones filed a habeas petition challenging the constitutionality of his prison disciplinary proceeding. Jones filed a motion for summary judgment on October 28, 2009. At the December 21, 2009 evidentiary heаring before the magistrate judge, the DHO testified that she did not see photographs of Jones’s injuries at the hearing. Jones testified that he was unable to present photographs of his injuries to the DHO because he never received them prior to the hearing. He further stated that he was not given the opportunity to review any of the documentary evidence, including medical reports, prior to his hearing. Jones also stated that he requested that the DHO review the medical reports and consider the treatment he received after the incident.
On February 23, 2010, Magistrate Judge Frazier issued a Report and Recommendation concluding that Jones had not been denied due process, and recommending both the denial of Jones’s motion for summary judgment and the entry of judgment against him. Jones filed objections to the Report and Recommendation. Chief District Judge Herndon reviewed and ultimately overruled those objections, issuing an opinion adopting the magistrate’s Report and Recommendation on September 28, 2010. Jones timely appealed.
II. Discussion
We review de novo the district court’s denial of Jones’s § 2241 petition.
Daniels v. Knight,
Federal inmates must be afforded due process before any of their good time credits — in which they have a liberty interest — can be revoked.
See Brooks-Bey v. Smith,
Jones raises numerous due process challenges to his disciplinаry hearing. Jones first contends that his due process rights were violated because both his receipt of the incident report and his disciplinary hearing occurred outside the time frames set forth in the applicable BOP regulations. Jones also argues that he was wrongfully denied the opportunity to view the surveillance video, review and present documentary evidence, and call certain witnesses. Jones further objects to the DHO’s failure to watch the surveillanсe video. According to Jones, these multiple violations denied him the opportunity to present his “actual innocence” defense — • namely, that he lacked the specific intent *846 to injure Loftus, and therefore cannot be found guilty of assault. As discussed below, that argument contains a fundamental flaw that dooms Jones’s appeal. Finally, Jones contends that he was found guilty based on insufficient evidence.
We begin with Jones’s argument that delays in the disciplinary process, which allegedly violated BOP regulations, constituted a deprivation of due process. BOP regulations provide that “[sjtaff shall give each inmate charged with violating a Bureau rule a written copy of the charge(s) against the inmate, ordinarily within 24 hours of the time staff became aware of the inmate’s involvement in the incident.” 28 C.F.R. § 541.15(a). Here, Jones did not receive a copy of the incident report until 13 days after the incident. BOP regulations also provide that an inmatе’s “initial hearing before the UDC, ordinarily [will be] held within three work days from the time staff became aware of the inmate’s involvement in the incident.” Id. § 541.15(b). That time frame may be extended “for a good cause shown by the inmate or staff and documented in the record of the hearing.” Id. § 541.15(k). Furthermore, the regulations allow prison staff to “suspend disciplinary proceedings for a period not to exceed two calendar weeks while informal resolution is undertaken and accomplished.” 28 C.F.R. § 541.11, table 2, n. Here, the UDC hearing was held almost three weeks after the incident, and the DHO hearing occurred nearly two months after the incident. Jones argues that the prison violated § 541.15(a) and (b), and that those violations deprived him of due process.
Jones’s delay argument is not based on his liberty interest in his good time credits. As noted above, with respect to timing, all that due process requires is that prisoners be given written notice of alleged violations at least 24 hours befоre a disciplinary hearing. Jones had more than sufficient notice — he received the incident report a week before his UDC hearing and over a month before his DHO hearing. Rather, Jones argues that he has a separate liberty interest in the time frames set forth in § 541.15(a) and (b).
Before considering whether those regulations give rise to a liberty interest, we note that whether Jones has established a violation of the regulations is not clear. Jones acknowledges that the reason for the initial delay was the pending FBI investigation, which likely provides “good cause” for at least a portion of the delay in holding the UDC hearing. Moreover, the regulations — which address the timing of only notice to an inmate and the UDC hearing, not the DHO hearing — appear to be advisory, stating when events “ordinarily” should occur. But even assuming there was a violation of BOP regulations in this case, that violation did not infringe Jones’s constitutionally-protected rights.
Noncomрliance with § 541.15(a) and (b) amounts to a due process violation only if those regulations create a liberty interest. Prison regulations give rise to a liberty interest only if they shield inmates from an “atypical or significant hardship ... in relation to the ordinary incidents of prison life.”
Sandin v. Conner,
Moreover, Jones suffered no prejudice as a result of the delays, so any conceivable due process violation was harmless.
See Piggie v. Cotton,
But the DHO had other evidence corroborating that version of events before her. Specifically, she considered Jones’s statement that he pushed Loftus only to stop him from cutting off Jones’s windpipe, as well as Tosana’s memorandum, which confirmed that Loftus pinned Jones against the grill area by placing his forearm on Jones’s neck. Masvidal’s testimony merely would have been cumulative of that evidence. Moreover, the DHO credited Jones’s version of events- — -that he only pushed Loftus to free his windpipe. Nevertheless, she concluded that, regardless of Jones’s motive, he was guilty of assault because he admittedly pushed a staff member with force. In essence, the DHO found that Jones’s admission that he pushed Loftus provided sufficient evidence to support a finding of guilt on the assault charge. Plainly, Masvidal’s testimony that Loftus was the aggressor would not have changed the DHO’s decision. Because Jones’s inability to present Masvidal’s testimony did not prejudice him, any conceivable error was harmless.
The same harmless error analysis applies to Jones’s inability to call St. Hilaire as a witness. Jones contends that, like Masvidal, St. Hilaire would have testified as to his “aсtual innocence.” In other words, St. Hilaire would have verified Jones’s version of events in which he only pushed Loftus to free himself. As explained above, that testimony would have done nothing to help Jones’s defense, and therefore any error related to St. Hilaire also was harmless.
We turn now to Jones’s contention that he was denied due process because he was not permitted to view evidence that he characterizes as exculpatory, including thе surveillance video, his medical reports, photographs of his injuries, Counselor Cabrera’s report, Bob Wenzler’s report, and Staff Representative Tosana’s memoranda. The rule of
Brady v. Maryland,
In this context, the purpose of the
Brady
rule is “to insure that the disciplinary board considers all of the evidence relevant to guilt or innocence and to enable the prisoner to present his or her best defense.”
Biggie,
*848 Intent to do harm is an element of both criminal assault and common law tortious assault. See 6A C.J.S. Assault § 81 (2011) (“intent to injure or to cause a reasonable apprehension of bodily injury is an essential element of [criminal] assault”); Restatement (Second) of Torts § 21 (1965) (liability for tortious assault requires intent “to cause a harmful or offensive contact ..., or an imminent apprehension of such a contact”). However, Jones was neither convicted of criminal assault, nor held civilly liable for assaulting Loftus. Rather, he was found to have violated section 224 of 28 C.F.R. § 541.3, the BOP’s prohibition on inmates “assaulting any person.” Jones presents no argument that section 224 should be interpreted to incorporate the common law definition of assault. And an analysis of that section suggests that the BOP did not intend such a reading of the regulation.
At common law, assault involved no physical contact (only the threat of such contact), whereas battery did require such contact.
See United States v. Vallery,
Jones’s defense can also be viewed as one of self-defense. But we have held that inmates do not have a constitutional right to raise self-defense as a defense in the context of prison disciplinary proceedings.
See Scruggs,
Because Jones’s claimed defense is not a valid one, none of the evidence he says he should have been provided can be characterized as exculpatory. Only evidence that undermined or contradicted Jones’s admission that he pushed Loftus would be exculpatory, and none of the evidence at issue does so. Jones was entitled only to exculpatory evidence, and therefore there was no due process violation. Moreover, because the evidence was not exculpatory, it would not have changed the outcome of the DHO hearing, and thus Jones suffered no prejudice.
Jones’s claim with respect to the video fails for the additional reason that prison officials are not required to disclose evidence that would unduly threaten institutional safety. We have held that an inmate is not entitled to disclosure of an exculpatory surveillance video if allowing the inmate to see the tape would entail a security risk.
Piggie,
The fruitlessness of Jones’s actual innocence defense also dooms his objection to the DHO’s refusal to view the surveillance video. There is no dispute that the video shows Jones pushing Loftus. Even if it also shows Loftus using force on Jones first, that does not change the fact that “physical injury or contact [was] attempted or accomplished by” Jones in violation of section 224.
Finally, Jones asserts a sufficiency of the evidence argument. The DHO’s decision need only be support by “some evidence in the record.”
Webb v. Anderson,
III. Conclusion
For the foregoing reasons, we Affirm the denial of the petition.