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**This is the last message Marty sent before he was placed in solitary confinment on or about Friday September 24th. He is believed to be on a hunger strike and today, September 27th, is believed to be the 4th day of the strike.**
Disciplinary-hearing statement of Martin S. Gottesfeld
This statement corresponds to the **still-unnumbered** BP-A0288 INCIDENT REPORT issued by outside employee Jodi Wampler at 11:50 A.M. Sept. 20, 2021, for an incident allegedly discovered 9:00 A.M. 09/20/2021 involving a call two (2) days earlier September 18, 2021. See UNNUMBERED BP-A0288 INCIDENT REPORT of Jodi Wampler (hereinafter the "IR"), Exh. 1.
"Inmates may submit telephone numbers for any person they choose, including numbers for... members of the news media." BOP Program Statement 5264.08 Inmate Telephone Regulations (Jan. 24, 2008) at ch. 8 Procedures, Exh. 2. The relevant program statement says nothing about limiting media interviews. See id. at sec. f Limitations on Inmate Telephone Calls.
Instead the IR manifestly charges prohibited-act code 297: "Use of the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor the frequency of telephone use, content of the call, or the number called; or to commit or further a High category prohibited act." 28 C.F.R. sec. 541.3 Prohibited acts and available sanctions, at code 297, Exh. 3. See also Program Statement 5270.09 Inmate Disciplinary Program (July 8, 2011) at Table 1, code 297 (same).
Nowhere does the IR allege---let alone provide a scintilla of evidence---that I "circumvent[ed] the ability of staff to monitor [(1)] frequency of telephone use, [(2)] content of the call, or [(3)] the number called," as required for my conduct to violate prohibited-act code 297. In contrast, "the disciplinary decision must be supported by at least 'some evidence.'" Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007), quoting Superintendant, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985).
First, BOP knew and knows my frequency of phone use. The IR nowhere alleges I used cell phone or other unauthorized phone. I used the authorized BOP ITS phone system as per BOP policy. "Unless specifically restricted, inmates will be allowed two 15-minute monitored telephone calls per week. Calls may be placed Monday through Friday, except holidays, between 8:00 a.m. and 8:00 p.m. local time. On Sundays and holidays, telephone calls may be placed between 8:00 a.m. and 2:30 p.m., local time." Program Statement 5214.02 Communications Management Unit (Apr. 1, 2015) at ch. 5 CONDITIONS OF CONFINEMENT, sec. c Contact with Persons in the Community, subsec. (2) Telephone Communication Limits. I placed my pre-scheduled, preapproved, weekly telephone call to my wife Mrs. Dana E. Gottesfeld at 5:20 P.M. local time Thursday, September 18, 2021, a non-holiday.
Second, BOP knew the content of the call as it purports to quote its contents in the incident report. See, again, the IR.
Third, BOP knew the number called. My call records will show multiple prior calls to the same pre-approved number for my wife, i.e. (310) 923-5880. The administrative block was put on her number only after the call in question. See 1) GOTTESFELD, MARTIN (12982104) TRULINCS Contact List - Phone (Sept. 23, 2021), Exh. 4 and 2) BP-A0740 REQUEST FOR INMATE PHONE RESTRICTION by Jodi Wampler (Sept. 20, 2021), Exh. 5.
If allowed to question Ms. Wampler, my first questions would confirm 1) that she knew my frequency of phone use, 2) that she knew the contents of my call, and 3) that she knew the number called.
The IR neither alleges nor provides any evidence I "commit[ted] or further[ed] a High category prohibited act," as required by prohibited-act code 297. Cf., e.g., 28 C.F.R. sec. 541.3, prohibited-act code 299 ("... The offending conduct must be charged as 'most like' one of the listed High severity prohibited acts"), Exh. 6.
My wife is a member of the news media. She has written for HuffPost and writes for RT. Ms. Jodi Wampler, author of the incident report, was already aware that my wife writes for RT because my wife and I had discussed my wife's marking up of a manuscript for publication at RT on a previous phone call---a call for which no incident report was delivered.
If allowed to question Ms. Wampler, I would establish that she knew my wife to be a member of the news media who writes for RT and that BOP policy expressly allows me to to call journalists.
I cannot have violated prohibited-act code 297's actual terms, or committed any other prohibited act.
Further, other regulations that "CONTACT WITH THE NEWS MEDIA" inside BOP facilities are inapplicable, e.g. 28 C.F.R. secs. 540.60--63, marked-up, Exh. 7. In contrast, media interviews not done in-person require no preapproval. Again, "Inmates may submit telephone numbers for any person they choose, including numbers for... members of the news media."
Program Statement 5264.08 Inmate Telephone Regulations, above. See also 28 C.F.R. secs. 551.80 et seq. ("An inmate may prepare a manuscript for private use or for publication while in custody without staff approval" and "An inmate may mail a manuscript as general correspondence"), Exh. 8; McGowan v. United States, 825 F.3d 118, 122 (2d Cir. 2016) (noting the striking down of BOP's byline restriction as unconstitutional), citing Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007); and U.S. Const. amend. I.
Not only is the charged prohibited-act code clearly frivolous, but the IR is clearly retaliatory. "I mentioned [Unit Manager] Royer's onging PREA violations on this call. This incident report is the latest attempt to immunize Mr. Royer against PREA. I had calls just like this and no incident reports. The distinguishing feature of this call was that it dealt with Mr. Royer and PREA. No PREA interviews have ever been conducted the way they were for Ms. Owens. This is discriminatory." The IR at sec. 17.
PREA protects third-party reporting of the type Ms. Wampler complains about: "The agency shall establish a method to receive third-party reports of sexual abuse and sexual harassment." 28 C.F.R. sec. 115.54 Third-party reporting.
If allowed to question Ms. Wampler, I would establish that she undergoes mandatory PREA training and is aware of the rules precluding retaliation against prisoners who report sexual abuse and the procedures re third-party sexual-abuse reporting.
After my first PREA complaint against Mr. Royer---of which Mr. Royer was well aware---Mr. Royer came into my cell unescorted, off-camera as a show of dominance. I reasonably interpret the sum of his behavior that day as an unwanted sexual advance. Mr. Royer had previously opened my cell door and stared at me defecating. Other prisoners report the same. "Sexual abuse of an inmate... by a staff member... includes... [v]oyeurism by a staff member." 28 C.F.R. sec. 115.6 Definitions related to sexual abuse. "Voyeurism by a staff member... means an invasion of privacy of an inmate... by staff for reasons unrelated to official duties, such as peering at an inmate who is using a toilet in his or her cell to perform bodily functions." Id.
Mr. Royer also went off-camera, unescorted, into the prisoners' shower area and reached his hand into an occupied shower. A report was filed then too. "Upon learning of an allegation that an inmate was sexually abused, the first security staff member to respond to the report shall be required to: (1) Separate the alleged victim and abuser." 28 C.F.R. sec. 115.64(a) Staff First Responder Duties. Mr. Royer has never been separated from me and his numerous other accusers in this unit. I speak out and WHAM.
"Following an investigation into an inmate's allegaton that he or she suffered sexual abuse in an agency facility, the agency shall inform the inmate as to whether the allegation has been determined to be substantiated, unsubstantiated, or unfounded." 28 C.F.R. sec. 115.73(a) Reporting to inmates. Neither I nor any of Mr. Royer's other accusers have ever heard back on any of our reports. My oldest such report is from summer 2019---more than two (2) years ago.
"For at least 90 days following a report of sexual abuse, the agency shall monitor the conduct and treatment of inmates or staff who reported sexual abuse and of inmates who were reported to have suffered sexual abuse to staff to see if there are any changes that may suggest possible retaliation by inmates or staff." 28 C.F.R. sec. 115.67(c) Agency protection against retaliation. Nobody has ever followed up with me or any of Mr. Royer's other accusers to hear how he, in fact, does retaliate against us.
Further showing retaliation, I never received the DHO report for the last retaliatory and otherwise-unconstitutional incident report Ms. Wampler filed against me. This denies me due process. See Scruggs, above, at 939 ("Due process requires that prisoners in disciplinary proceedings be given: '... a written statement by the fact-finder of the evidence relied on and the reasons for disciplinary action," quoting Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992)). Now, with that report missing for over six (6) months and preventing me from appealing the sanctions I already served for my previous protected speech, BOP seeks to sanction me again for clearly protected conduct and under clearly frivolous cirumstances. This is a malicious abuse of the prison-disciplinary system that calls into question the impartiality of any knowing participant therein.
And the leaving of the incident report as still-unnumbered after the unit disciplinary committee (UDC) casts a shade of illegitimacy upon these proceedings. At best, the number of this incident report is withheld from me, or, perhaps it's not even been logged into the system, i.e. it's extrajudicial and extra-administrative. I assert I am frequently prevented from knowing the number of the incident reports filed against me to interfere with my abilities to ascertain relevant information for litigation.
More shade is cast by the untimeliness of this report---following the untimeliness of its predecessors. See, generally, Petition for a Writ of Habeas Corpus, Gottesfeld v. Lammer, 2:20-cv-00012-JRS-MJD, dkt. 1 (S.D. Ind.). The call took place on September 18, 2021. The contents of the call were known then; it was live monitored. See 28 C.F.R. sec. 540.204. Only after Mr. Royer's PREA violations became public was the report written untimely.
Due to the IR's retaliatory nature qualified immunity is unavailable to anyone imposing sanctions or attempting to maliciously abuse the prison-disciplinary process. See, again, McGowan, above, Jordan, above, U.S. Const. amend. I, and contrast Procunier v. Martinez, 396, 405 (1974) ("But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights"). See also id. at 408--22.
