                                                                          F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    September 18, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 B RIA N L. B RO WN ,

               Petitioner-A ppellant,                    No. 06-1210
          v.                                             (D . of Colo.)
 H. A. RIOS, W arden,                           (D.C. No. 05-CV-1603-BNB)

               Respondent-Appellee.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **


      Petitioner-Appellant Brian L. Brown, a federal inmate proceeding pro se,

filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in federal

district court claiming that prison disciplinary proceedings violated his due

process rights. The magistrate judge of the district court denied his habeas




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
petition. 1 Brown later moved for leave to proceed in form a pauperis (IFP) on

appeal, w hich the magistrate judge promptly denied for lack of good faith. Brow n

now seeks an appeal of the magistrate judge’s decision and renews his motion to

proceed IFP. For substantially the same reasons set forth by the magistrate judge,

we affirm the order denying habeas relief, deny Brown’s IFP motion, and dismiss

this matter.

                                     I. Background

      Brown is incarcerated at the United States Penitentiary in Florence,

Colorado. On September 9, 2004, Brown received an incident report accusing him

of throwing his noon meal into the interior range, throwing newspapers from his

cell onto the range, setting the papers on fire, and then disobeying an order to be

handcuffed. 2 Brown was charged with setting a fire, refusing an order, and being

unsanitary and untidy. The matter was referred to the prison’s Unit Discipline

Committee (UDC) that day. On September 13, 2004, the UDC held a hearing on

the matter and determined that the charges should be forwarded to a disciplinary

hearing officer (DHO).



       1
           Both parties consented to magistrate judge jurisdiction over the matter.
       2
        Initially, the reporting officer recorded the date of the incident as
September 7, 2004. Subsequently, the reporting officer submitted a memorandum
correcting the date of the incident to September 8, 2004. The error was noted and
the correct date of the incident was affirmed as September 8, 2004. As the
magistrate judge noted, the exact date of the incident does not affect the analysis
of claims presented in Brown’s petition.

                                           -2-
      The DHO held a hearing on September 14, 2004. He found Brown guilty of

refusing an order and setting a fire and dismissed the third charge of being

unsanitary. The DHO imposed several sanctions, including the forfeiture of good

conduct time. A t the time, the D HO did not complete the section of the DHO

report entitled, “Reason for Sanction or A ction Taken.”

      Brown appealed the DHO’s decision to the Regional Director for the Bureau

of Prisons (BOP). The Regional Director affirmed the convictions, but instructed

the DHO to amend his report to specifically state the reasons for the sanctions.

The DHO completed an amended report and delivered a copy to Brown on

November 11, 2004.

      Brown then petitioned for the writ of habeas corpus in the federal court in

the District of Colorado claiming that the prison disciplinary proceedings violated

due process. Analyzing Brown’s claims, the magistrate judge found them each

without merit and dismissed Brown’s petition.

                                    II. Analysis

      W e review de novo a district court’s denial of a petition for habeas corpus.

M artinez v. Flowers, 164 F.3d 1257, 1258 (10th Cir. 1998). To meet the standards

of due process in a prison disciplinary proceeding, an inmate must receive the

protections set forth in Wolff v. M cDonnell, 418 U.S. 539, 563–66 (1974): written

notice of the charges at least twenty-four hours before the hearing, an opportunity

to present witnesses and evidence in defense of those charges, and a written

                                         -3-
statement by the fact finder of the evidence relied on and the reasons for the

disciplinary action. Smith v. M aschner, 899 F.2d 940, 946 (10th Cir. 1990).

Additionally, due process requires “some evidence to support the hearing panel’s

decision . . . and the decisionmaker must be impartial.” Gwinn v. Awmiller, 354
F.3d 1211, 1219 (10th Cir. 2004) (citing Wolff, 418 U.S. at 592) (M arshall, J.,

concurring).

      After reviewing the merits of the Petitioner-Appellant’s claims, we agree

with the magistrate judge that Brown received the due process required by Wolff.

      A. Violations of BO P R egulations

      First, Brown complains that prison authorities BOP regulations by failing to

serve him a copy of the incident report within twenty-four hours, failing to provide

him a UDC hearing within three working days of the time staff became aware of

the incident, and denying him access to legal materials and the prison library. See

28 C.F.R. §§ 541.15(a)–(b), 541.12, and 543.10 (2006). These allegations fail to

raise a due process violation under Wolff.

      Prison regulations are “primarily designed to guide correctional officials in

the administration of a prison. [They are] not designed to confer rights on

inmates.” Sandin v. Conner, 515 U.S. 472, 481–82 (1995). W here a liberty or

property interest has been infringed, the process which is due under the United

States Constitution is that measured by the due process clause, not prison

regulations. See Cleveland Bd. of Educ. v. Louderm ill, 470 U.S. 532, 541 (1985)

                                          -4-
(“[O]nce it is determined that the Due Process Clause applies, the question

remains what process is due. The answer to that question is not to be found in the

[state] statute.”) (quotation and citation omitted); Hulen v. Yates, 322 F.3d 1229,

1247 (10th Cir. 2003) (“[O]nce the property right is established, it is purely a

matter of federal constitutional law whether the procedure afforded was

adequate.”); see also Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004)

(“[R]egardless of state procedural guarantees, the only process due an inmate is

that minimal process guaranteed by the C onstitution.”).

      Wolff mandates only a twenty-four hour advance notice of a disciplinary

hearing and an opportunity to present a defense. It does not require an UDC

hearing. Brown was therefore afforded protections in excess of those required by

law: (1) he received notice five days before his hearing, (2) received a

constitutionally unnecessary UDC hearing within three days, and (3) articulated no

argument on how he was prevented from adequately presenting a defense. Even if

minor violations of BOP regulations occurred, 3 they would not rise to a

constitutional violation under Wolff.

      Accordingly, the magistrate judge did not err in denying these claims.

      B. Sufficiency of Evidence




       3
         Under the determination of facts found by the magistrate judge, no
violation of B OP notice requirements appears.
                                       -5-
      Next, Brown alleges that his conviction by the DHO was unsupported by

“some evidence” and thus constitutes a deprivation of his liberty. Our review of

the evidentiary threshold “does not require [an] examination of the entire record,

[an] independent assessment of the credibility of witnesses or weighing of the

evidence.” M itchell v. M aynard, 80 F.3d 1433, 1445 (10th Cir. 1996) (citing

Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985)).

“Instead, the relevant conclusion is w hether there is any evidence that could

support the conclusion reached by the disciplinary board.” Id. The decision can

be upheld even if the evidence supporting the decision is “meager.” Id.

      The reporting officer’s written account of the incident describes in detail

Brown’s prison code infractions. The account describes how Brown threw his

lunch on a range with some newspapers and set the combination aflame. W hen

ordered to submit to handcuffs, Brown refused and uttered obscenities at the

officer. This account, which the DHO found credible, is sufficient to support a

conviction of disobedience and setting a fire. Accordingly, we find this

evidentiary claim to be without merit.

      C. Impartial Decisionm aker

      Brown next asserts that the DHO presiding over the case was biased,

depriving him of due process. The essence of Brown’s argument is that he had

previously named the D H O as a defendant in a separate civil lawsuit. “An

impartial decisionmaker is a fundamental requirement of due process” and “should

                                          -6-
be decided on a case-by-case basis.” Gwinn, 354 F.3d at 1220 (quotations

omitted). Nevertheless, since prisoners may file numerous lawsuits naming

multiple prison officials as defendants, “courts should be alert not to sustain

routine or pro forma claims of disqualification.” Id. at 1220–21 (citation and

quotations omitted). “From a practical standpoint, requiring each staff member

who is the subject of a separate lawsuit to disqualify himself from sitting in

judgment of that inmate would heavily tax the working capacity of the prison

staff.” Id. at 1221 (quotations omitted).

      Standing alone, the allegation that the DHO was biased solely as a result of

his being named a defendant in a civil suit by Brown does not rise to a due process

violation. See id. (“Careful scrutiny of disqualification claims is grounded in

legitimate considerations of prison administration.”). As determined above, there

was sufficient evidence to support Brown’s conviction and no other indication

suggests the DHO was involved “in the investigation or prosecution of the

particular case, or . . . had any other form of personal involvement in the case.”

Wolff, 418 U.S. at 592 (M arshall, J., concurring) (describing the minimum

requirements of due process in a disqualification claim). Thus, the magistrate

judge did not err in denying this claim.

      D. Changed Facts

      Brown’s final due process claim was that the DHO “changed facts, not

previously presented at [the] hearing” in his final report. As determined by the

                                            -7-
magistrate judge, the DHO only supplemented his final report with the reasons for

imposing sanctions, as required by the Regional Director. No additional facts

were incorporated into the report. Brown also objected to the correction of the

date of the incident to September 8, 2004 in the DHO’s report based on the

reporting officer’s indication that the date w as originally misstated. Here, there is

no basis for equating the officer’s correction of the record with constitutional

error.

                                   III. Conclusion

         In sum, we agree with the magistrate judge’s determination that the

disciplinary hearings at issue comported with the minimum requirements of due

process under Wolff. A ccordingly, we AFFIRM the lower court’s order, DENY

Petitioner-A ppellant’s IFP motion, and DISM ISS this appeal.

                                        Entered for the Court:

                                        Timothy M . Tymkovich
                                        Circuit Judge




                                          -8-
