Lee v. Bradley (Incident No. 3246747)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL A. LEE, :

Petitioner :

: No. 1:21-cv-1504

v. :

: (Judge Rambo)

E. BRADLEY, :

Respondent :

MEMORANDUM

On August 31, 2021, pro se Petitioner Michael A. Lee (“Petitioner”), who is

currently incarcerated at the United States Penitentiary Canaan (“USP Canaan”) in

Waymart, Pennsylvania, initiated the above-captioned action by filing a petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging an incident report

he received while incarcerated at the Federal Correctional Institution Gilmer (“FCI

Gilmer”) in Glenville, West Virginia. (Doc. No. 1.) Petitioner paid the requisite

filing fee on September 21, 2021. (Doc. No. 6.) In an Order entered September 22,

2021, the Court directed Respondent to show cause why Petitioner should not

receive the relief he seeks. (Doc. No. 7.) Respondent filed his response on October

12, 2021. (Doc. No. 9.) Petitioner filed his traverse (Doc. No. 10) and a motion to

subpoena Unit Manager Clem to testify (Doc. No. 11) on October 29, 2021.

Petitioner’s § 2241 petition is, therefore, ripe for disposition.

I. BACKGROUND

On March 20, 2022, the United States District Court for the Eastern District

of North Carolina sentenced Petitioner to serve 360 months’ incarceration for

conspiracy to distribute cocaine and a consecutive term of sixty (60) months’ for

carrying a firearm during a drug trafficking offense. (Doc. No. 9-1 at 119-20.)

Subsequently, the court reduced Petitioner’s sentence on the conspiracy conviction

to 202 months’ incarceration. (Id. at 119.) Petitioner, therefore, is serving an

aggregate sentence of 262 months’ incarceration. His anticipated release date, with

good conduct time (“GCT”) factored in, is April 5, 2022. (Id. at 118.)

A. Facts Regarding Incident Report #3246747

On April 17, 2019, Officer Gainer approached Petitioner’s cell after noticing

that he had covered the camera located inside his cell. (Id. at 123.) The officer also

noted that the cell window was covered. (Id.) Officer Gainer ordered Petitioner to

uncover his window and submit to hand restraints; Petitioner refused. (Id.)

Petitioner stated, “Do what you gotta do, I’m a do what I gotta do. I’m a f*** one

of ya all up if you come in here.” (Id.) Officer Gainer issued Incident Report

#3246747, charging Petitioner with a violation of Code 307, refusing an order, and

203, threatening another with bodily harm or any other offense. (Id.) Petitioner

received a copy of the Incident Report that same day. (Id.) The investigating officer,

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Lieutenant Bishoff, advised Petitioner of his rights and noted that Petitioner stated,

“No comment.” (Id. at 124.)

The Incident Report was forwarded to the Unit Discipline Committee

(“UDC”) for further action. (Id.) The UDC hearing was initially conducted on April

20, 2019,1 and the Incident Report was referred to the DHO. (Id. at 126.) However,

the DHO remanded the Incident Report for further investigation because Lieutenant

Bishoff had been involved in the incident. (Id. at 126, 134.) A new Incident Report,

investigated by Lieutenant Boatwright, was issued to Petitioner on April 23, 2019.

(Id. at 125.) Lieutenant Boatwright advised Petitioner of his rights, and Petitioner

provided the following statement: “This incident never happened, I never even spoke

to Officer Gainer. The two staff I spoke to were Lt. Bishoff and Officer Frazier,

they came to my door and video should prove this. Officer Gainer never stopped at

my door or had a conversation with me, Officer Gainer never opened the food slot

to even give me the opportunity to submit to restraints.” (Id.) Because of the delay

caused by reissuing the Incident Report, staff received approval from the Warden to

conduct the UDC hearing outside of the normal time limitations. (Id. at 126.) The

UDC hearing was held on April 26, 2019. (Id. at 127.) Petitioner was advised of

his rights at that time. (Id. at 128.) He requested that R. Clem serve as his staff

1 It is unclear whether Petitioner appeared at this initial UDC hearing. The record contains a

document waiving his right to appeal, but it was not signed by Petitioner. (Doc. No. 9-1 at 130.)

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representative and that inmate Johnnie Banks appear as a witness on his behalf. (Id.

at 129.)

Petitioner appeared before the DHO on May 10, 2019. (Id. at 132.) The DHO

confirmed that Petitioner understood his rights. (Id.) Unit Manager Clem appeared

and noted that Petitioner had requested that he review the video footage, which he

did. (Id.) Unit Manager Clem stated that the video showed Petitioner covering the

window of the cell door, the officers standing in front of the cell door, and Petitioner

finally uncovering his window. (Id.) Dr. Wagner was also on the scene for

“confrontation avoidance.” (Id.) Petitioner provided the following statement, “I

never made this statement to Officer Gainer. Even if I did make the statement how

could he hear me. The officers always say how loud it is down there and they have

to put [their] ear to the door anytime we try to talk to them.” (Id.) Inmate Banks

appeared and stated, “I was in the cell next to Lee, I don’t remember him saying

anything to Gainer.” (Id. at 133.) Petitioner also had provided a written statement

to the UDC, which the DHO asked that he read aloud because two (2) of the pages

were illegible. (Id. at 134.)

The DHO found Petitioner guilty of Code 299, disruptive conduct most like a

violation of Code 203, threatening another person. (Id. at 133-34.) In doing so, the

DHO considered the Incident Report, statements made by Petitioner and his witness,

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photographs, injury assessments, Petitioner’s clinical encounter report, and staff

memoranda. (Id. at 133.) The DHO sanctioned Petitioner with disallowance of

twenty-seven (27) days’ GCT, thirty (30) days of disciplinary segregation, and six

(6) months’ loss of commissary and phone privileges. (Id. at 135.) Petitioner

received a copy of the DHO report on June 20, 2019. (Id. at 136.) He subsequently

exhausted his administrative remedies with respect to this Incident Report. (Id. at

109.)

B. Summary of Petitioner’s § 2241 Petition

Petitioner then filed the instant § 2241 petition. (Doc. No. 1.) In his petition,

Petitioner argues that his due process rights were violated because: (1) the DHO

intentionally misrepresented the statement made by his staff representative; (2) he

did not have a UDC hearing twenty-four (24) hours before the DHO hearing; (3) the

charging document is not a true Incident Report and a second incident report was

never issued after it was remanded; (4) Lieutenant Bishoff added an offense to the

Incident Report; (5) the Incident Report contains an incorrect time for when the

offense occurred; and (6) the DHO changed the offense code without any notice to

Petitioner. (Id. at 6-8.) As relief, Petitioner requests that the BOP expunge the

Incident Report and restore his GCT. (Id. at 7.)

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II. DISCUSSION

Liberty interests protected by the Fifth Amendment may arise either from the

Due Process Clause itself or from statutory law. Torres v. Fauver, 292 F.3d 141 (3d

Cir. 2002). It is well settled that “prison disciplinary proceedings are not part of a

criminal prosecution and the full panoply of rights due a defendant in such

proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

Nevertheless, the Supreme Court has held that that there can be a liberty interest at

stake in disciplinary proceedings in which an inmate loses good conduct time. Id.

at 557. Because Petitioner’s sanctions included the loss of good conduct time, he

has identified a liberty interest.

In Wolff, the Supreme Court set forth the following minimum procedural due

process rights to be afforded to a prisoner accused of misconduct in prison which

may result in the loss of good time credit: (1) the right to appear before an impartial

decision-making body; (2) twenty-four hour advance written notice of the

disciplinary charges; (3) an opportunity to call witnesses and present documentary

evidence in his defense when it is consistent with institutional safety and correctional

goals; (4) assistance from an inmate representative if the charged inmate is illiterate

or complex issues are involved; and (5) a written decision by the fact finder of the

evidence relied upon and the rationale behind the disciplinary action. Wolff, 418

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U.S. at 563-67. The Supreme Court has held that the standard of review about the

sufficiency of the evidence is whether there is “any evidence in the record that could

support the conclusion reached by the disciplinary board.” Superintendent v. Hill,

472 U.S. 445, 455-56 (1985); see also Griffin v. Spratt, 969 F.2d 16, 19 (3d Cir.

1992). If there is “some evidence” to support the decision of the hearing examiner,

the court must reject any evidentiary challenges by the plaintiff. Hill, 472 U.S. at

457. The Hill standard is minimal and does not require examination of the entire

record, an independent analysis of the credibility of the witnesses, or even a

weighing of the evidence. See Thompson v. Owens, 899 F.2d 500, 501-502 (3d Cir.

1989).

The BOP’s inmate disciplinary procedures are codified at 28 C.F.R. § 541, et

seq., and entitled Inmate Discipline and Special Housing Units. These procedures

are intended to meet or exceed the due process requirements prescribed by the

Supreme Court. See Von Kahl v. Brennan, 855 F. Supp. 1413, 1418 (M.D. Pa. 1994).

Pursuant to these regulations, staff shall prepare an Incident Report when there is

reasonable belief that a violation of BOP regulations has been committed by an

inmate and the staff considers informal resolution of the incident inappropriate or

unsuccessful. 28 C.F.R. § 541.5. Under the regulations, an inmate “ordinarily

receives[s] the incident report within 24 hours of staff becoming aware of . . .

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involvement in the incident.” Id. § 541.5(a) (emphasis added). The incident is then

referred to the UDC for an initial review pursuant to § 541.7.

The UDC review/hearing is “ordinarily [held] within five work days after [the

incident report] is issued” and does not include the initial day staff learns of the

incident, weekends or holidays. Id. § 541.7(c). If the UDC finds that a prisoner has

committed a prohibited act, it may impose any of the available sanctions set forth in

28 C.F.R. § 541.3 (Tables 1 and 2) except loss of good conduct time, disciplinary

segregation, or monetary fine. Id. If the alleged violation is serious and warrants

consideration for more than minor sanctions, or involves a prohibited act listed in

the greatest severity category, the UDC must refer the matter to a DHO for a hearing.

Id.

A DHO “will only conduct a hearing on the incident report if referred by the

UDC.” 28 C.F.R. § 541.8. An inmate will receive written notice of the charges 24

hours before the DHO hearing unless the inmate waives the notice requirement in

which case the DHO can conduct the hearing sooner. Id. The inmate is permitted

to have a staff representative at the hearing and entitled to make a statement and

present documentary evidence. Id. After the hearing, the DHO will either: (1) find

the inmate committed the prohibited act or similar one described in the incident

report; (2) find the inmate did not commit the prohibited act charged; or (3) refer the

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incident report back for further investigation, review and disposition. Id. If an

inmate is found to have committed a prohibited act, the DHO can impose any of the

available sanctions listed in Table 1 and 2 of § 541.3. Id. Finally, the written report

or decision of the DHO will contain the following: (1) whether the inmate was

advised of his or her rights during the proceedings; (2) the evidence relied on by the

DHO; (3) the DHO’s finding of guilt or innocence; (4) the sanctions imposed; and

(5) the reasons for the sanctions imposed. Id.

A. Petitioner Received His Due Process Rights

The record reflects that Petitioner received his procedural due process rights

under Wolff and the BOP regulations. Petitioner initially received a copy of the

Incident Report on April 17, 2019. (Doc. No. 9-1 at 123.) He received the new

Incident Report following remand on April 23, 2019. (Id. at 125.) Petitioner asserts

that he was never given advance notice of the charges prior to the DHO hearing.

(Doc. No. 2 at 1.) Petitioner, however, appeared before the DHO on May 10, 2019,

well more than twenty-four (24) hours after he received the new Incident Report.

(Id. at 132.) Unit Manager Clem served as Petitioner’s staff representative, and

inmate Banks appeared as a witness on his behalf. (Id. at 132-33.) Finally, Petitioner

received a copy of the DHO’s written decision, which included a review of the

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evidence relied upon and the rationale behind the disciplinary action, on June 20,

2019. (Id. at 136.)

Petitioner now asserts that he never went to a UDC hearing prior to the DHO

hearing. (Doc. No. 1 at 6.) Specifically, he asserts that he never went to a UDC

hearing and never received the Incident Report after the DHO remanded the matter

for further investigation. (Doc. No. 2 at 2.) According to Petitioner, his counselor

and Lieutenant Boatwright merely crossed out dates and times on the UDC

paperwork. (Id. at 2-3.) BOP regulations provide that an inmate is “permitted to

appear before the UDC during its review of the incident report.” 28 C.F.R.

§ 541.7(d). However, even if Petitioner was not present for the UDC hearing on

April 26, 2019, he has demonstrated no prejudice from his absence, nor has he shown

that § 541.7(d) itself created a liberty or property interest such that its alleged

violation violated his due process rights. See Bullard v. Scism, 449 F. App’x 232,

235 (3d Cir. 2011). Moreover, nothing in the record supports Petitioner’s assertion

that the form used by Lieutenant Boatwright is not a “true/official BOP document.”

(Doc. No. 2 at 3.) Rather, it appears that Lieutenant Boatwright completed the

investigation portion of an Incident Report form and included that with the other

pertinent paperwork following remand by the DHO. Moreover, while Petitioner

alleges that Lieutenant Boatwright never served the new Incident Report and instead

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alleged that he served it on April 29, 2019, the record reflects, in several locations,

that he did so serve the new Incident Report upon Petitioner on April 23, 2019. (Doc.

No. 9-1 at 125, 132.)

Petitioner also alleges that his due process rights were violated because

Lieutenant Bishoff handwrote a violation of Code 307, disobeying an order, on the

Incident Report. (Doc. No. 1 at 8.) Petitioner asserts that this violated BOP policy

because the reporting officer is the only individual, besides the DHO, who can add

offenses. (Id.) However, as noted supra, the DHO did not find that Petitioner

committed a violation of Code 307. Thus, he was not denied due process by its

addition and has not demonstrated how he was prejudiced by its inclusion in the

Incident Report.

Petitioner also alleges that the DHO violated his due process rights by

changing the charged offense to a Code 299, most like Code 203. However, the fact

that the Incident Report did not charge Petitioner with a violation of Code 299, most

like Code 203, is of no consequence. “[P]ursuant to 28 C.F.R. § 541.8(a)(1), a DHO

has the authority to find that an inmate ‘committed the prohibited act(s) charged,

and/or a similar prohibited act(s) as described in the incident report.” Guerrero v.

Recktenwald, 542 F. App’x 161, 164 (3d Cir. 2013). In the instant case, Incident

Report #3246747 set forth facts regarding how Petitioner threatened staff when they

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ordered him to uncover his window. The DHO considered these facts, and therefore,

“acted within his authority to conclude that [Petitioner] committed a similar . . .

offense t[o] the offense with which he was charged[,] and [Petitioner] received

adequate notice of the proceedings against him.” Guerrero, 542 F. App’x at 164.

Thus, the Court finds that Petitioner received all the procedural due process

procedures to which he was entitled.

B. The DHO Decision Was Based on Sufficient Evidence

With respect to the sufficiency of the evidence, Respondent has included the

Incident Report and the DHO report. (Doc. No. 9-1.) These documents

unequivocally establish that there was some evidence supporting the DHO’s

decision.

The DHO stated the following in his decision finding Petitioner guilty of Code

229:

Your due process rights were reviewed with you by the DHO at the

time of the hearing. You stated you understood your rights and

submitted a 3 page written statement during the UDC hearing. You

requested inmate Banks as a witness and he appeared and you requested

Unit Manager R. Clem as a staff representative and he appeared. You

indicated to the DHO you were ready to proceed.

The DHO notes that this incident report was sent back by the DHO to

have a new investigation completed as Lieutenant D. Bishoff conducted

the initial investigation and he was involved in this incident. Lieutenant

Boatwright conducted a new investigation on April 23, 2019. The DHO

also notes that due to this, the UDC staff had to request permission from

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the Warden in order to conduct a new UDC hearing as the new hearing

would have been outside of the normal time frames. This memorandum

was approved by the Warden on April 26, 2019 and the UDC staff

conducted the new hearing on this same day. Finally the DHO notes

that you submitted a 3 page written statement to UDC staff for the DHO

to review. 2 of these pages were illegible so the DHO asked you to read

aloud these two pages during the DHO hearing and you complied. In

that written statement you made two allegations against staff members

at FCI Gilmer and those allegations were forwarded to the appropriate

staff at FCI Gilmer.

The DHO finds you to have committed the prohibited act of conduct

disruptive to the orderly running of the institution most like threatening

another person, Code 299 most like Code 203.

The DHO bases this decision on the written statement of the reporting

officer: On the 17th day of April, 2019, I, Senior Officer B. Gainer

approached cell z01-101 occupied by [Petitioner] after observing that

he had covered the camera located in his cell. As I approached

[Petitioner’s] cell I also noticed that he had his cell window covered. I

then ordered [Petitioner] to uncover his window and submit to hand

restraints. [Petitioner] then refused to uncover his window and submit

to hand restraints. [Petitioner] then stated, “Do what you gotta do, I’m

a do what I gotta do. I’m a f*** one of ya all up if you come in here.”

I then exited the range.

In addition to the written report the DHO also considered a

memorandum dated April 17, 2019 from D. Bishoff, Lieutenant in

which he states that at approximately 8:10 A.M. on April 17, 2019 he

came to your assigned cell and observed your window to be covered

and he asked to speak with you. He further states that once you were

done speaking with him you covered [your] cell door window back up.

He states that another staff member then gave you an order to uncover

your door window and submit to hand restraints and he then heard you

state “Do what you have to do, I’m going to do what I have to do. I’m

going to f*** one of you up if you come in here.”

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You denied the charge and stated as your defense “I never made this

statement to Officer Gainer. Even if I did make the statement how

could he hear me. The officers always say how loud it is down there

and they have to put [their] ear to the door anytime we try to talk to

them.”

The DHO considered your defense in which you deny making a

threatening statement during this conversation. However, the DHO

relied on the eyewitness account of the reporting staff member. Officer

Gainer is clear in his report that he approached your cell and noticed

your window was covered. Further clear is that he then gave you an

order to uncover your window and submit to hand restraints and you

refused both orders and then stated “Do what you gotta do, I’m a do

what I gotta do. I’m a f*** one of ya all up if you come in here.”

Although you deny making this statement the DHO finds no obvious

reason for the staff member to fabricate this incident report and believes

the staff members’ observation was made strictly in the performance of

his duties. Furthermore, the reporting officer is under a legal obligation

to report truthful and accurate facts, whereas, you had much to lose by

accepting responsibility or being truthful in this matter and the DHO

believes that you are denying your role in this incident in an effort to

avoid being sanctioned for your actions. Additionally another staff

member was present during this incident and also heard you make this

statement, which further supports Officer Gainer’s account of the

incident.

Furthermore, although your statement was not a direct communication

to cause harm to a staff member, the DHO believes that any reasonable

person, in this same circumstance, would interpret your statement of

“I’m a f*** one of ya all up if you come in here” as a means to

intimidate or communicate a threat to cause harm to that individual.

The DHO also considered your defense in which you claim that staff

routinely have a difficult time hearing while in SHU and you claim it

would have been difficult for Mr. Gainer to hear this statement even if

you had made it. Again the DHO relied on the eyewitness account of

Officer Gainer in which he clearly states he heard you make this

statement. Additionally, Lieutenant Bishoff was present and also heard

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you make this statement. These staff are under a legal obligation to

report truthful and accurate facts and the DHO believes the staff

members’ observations were made strictly in the performance of their

duties.

The DHO considered your written statement you submitted and read

aloud during the DHO hearing due to the statement being illegible.

Along with allegations you make against FCI Gilmer staff in this

statement, your statement was a continued denial of you making this

statement.

The DHO considered the statement of your witness; however, greater

weight was placed on the staff members’ account as the DHO believes

this witness may be less than truthful to assist you in avoiding the

consequence of your actions.

The DHO also considered the statement of your staff representative in

which he stated he reviewed the video footage of the incident.

Although audio footage is not available on the camera footage, Mr.

Clem stated that he did observe[] Officer Gainer standing in front of

your cell at approximately 8:10 A.M., which contradicts your claim you

made to the investigating lieutenant in which you stated Officer Gainer

never stopped at your cell. Mr. Clem’s review of the video clearly

supports that Officer Gainer was near your cell door at the time of the

incident. Furthermore Mr. Clem reports that your cell door window

was initially covered at the start of the incident, but at some point you

did uncover your window. The DHO informed you that the charge

against you was for making a threatening statement to the staff member

and the issue of when and for how long your cell door window was

covered was irrelevant to the DHO in regards to this charge.

Therefore, based on the evidence outlined above, the DHO finds the

greater weight of the evidence to support you committed the prohibited

act of conduct disruptive to the orderly running of the institution most

like threatening another person, Code 299 most like Code 203.

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(Doc. No. 9-1 at 133-35.) Moreover, the DHO explained the imposed sanctions,

stating:

Making [veiled] threats to a staff member promotes disrespect for the

staff member and seriously detracts from the staff member’s ability to

maintain control of his assigned area of responsibility which not only

disrupted the security and orderly operation of the institution, but

created the potential for a larger disturbance to occur as well.

The DHO disallowed this inmate’s good conduct time in accordance

with his sentencing guidelines. The DHO imposed the sanctions of

disciplinary segregation and the loss of commissary and phone to let

the inmate know that he and he alone will be held responsible for his

actions/behavior at all times and to deter future behavior.

(Id. at 136.)

Petitioner suggests that there is not sufficient evidence to support the DHO’s

finding because Officer Gainer made a mistake as to the time of the Incident Report.

(Doc. No. 1 at 8.) Petitioner avers that Officer Gainer stated that the offense

occurred around 9:55 p.m., but that Lieutenant Bishoff noted that he gave Petitioner

the report at 12:50 p.m. Petitioner alleges further that the video surveillance showed

that Officer Gainer was not at his cell door during the incident. (Doc. No. 2 at 2.)

He also argues that the DHO intentionally misconstrued Unit Manager Clem’s

statement, and that Unit Manager Clem had direct evidence that would exonerate

him, but was afraid to share it “unless the issue went to court.” (Doc. No. 1 at 6;

Doc. No. 1-3 at 2.)

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When an inmate challenges the sufficiency of the evidence supporting the

DHO’s decision, “the ‘some evidence’ standard does not require . . . independent

assessment of the credibility of witnesses or weighing of the evidence.” Speight v.

Minor, 245 F. App’x 213, 216 (3d Cir. 2007) (quoting Hill, 472 U.S. at 455-56). As

an initial matter, Petitioner does not describe, and the Court does not discern, how

the typographical error regarding the time violated Petitioner’s due process rights.

Officer Gainer noted that he wrote the Incident Report at 9:55 p.m.; however, the

fact that Lieutenant Bishoff served it upon Petitioner at 12:50 p.m. indicates that

Officer Gainer’s notation was an error and that he prepared the report at 9:55 a.m.

Such typographical errors do not violate due process. See Millhouse v. Warden

Lewisburg USP, 785 F. App’x 931, 935 (3d Cir. 2019); Crane v. White, No. 4:20-

cv-636, 2020 WL 4347382, at *3 (M.D. Pa. July 29, 2020). Moreover, Petitioner

provides no explanation as to how the DHO misrepresented Unit Manager Clem’s

statement and what evidence Unit Manager Clem possessed that would have

exonerated him.

Petitioner also suggests that Officer Gainer falsified his report. (Doc. No. 2

at 1.) However, this claim “is not sufficient to establish a due process violation

[because he had] the opportunity to rebut the allegedly false accusations and

evidence.” See Willis v. Zickefoose, No. 11-2077 (NLH), 2012 WL 2076827, at *9

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(D.N.J. June 8, 2012); see also Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir.

2002) noting that “so long as certain procedural requirements are satisfied, mere

allegations of falsified evidence or misconduct reports, without more, are not enough

to state a due process claim”). Furthermore, Unit Manager Clem’s review of the

video footage clearly indicated that Officer Gainer had been standing in front of

Petitioner’s cell at some point during the incident. (Doc. No. 9-1 at 132.) Contrary

to Petitioner’s suggestion, “some evidence” supports the DHO’s conclusion that he

was guilty of violating Code 299, most like Code 203. See Denny v. Schultz, 708

F.3d 140, 145 (3d Cir. 2013) (noting that a court “need only find that the [Hearing

Officer’s] decision had ‘some basis in fact’ in order to affirm the decision as

comporting with the Due Process Clause”).

Petitioner also appears to suggest that the Incident Report was issued in

retaliation for his complaints against BOP staff. (Doc. No. 1-3 at 1.) This claim is

properly raised in Petitioner’s § 2241 petition because it relates to the loss of his

GCT, which affects the duration of his sentence. See Queen v. Miner, 530 F.3d 253,

255 n.2 (3d Cir. 2008). However, the Court’s determination that some evidence

supports the DHO’s decision negates Petitioner’s retaliation claim. See McGee v.

Scism, 463 F. App’x 61, 64 (3d Cir. 2012) (concluding that if a prison disciplinary

committee’s finding of a violation of prison rules is based on some evidence, that

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“finding essentially checkmates [a] retaliation claim” (quoting Henderson v. Baird,

29 F.3d 464, 469 (8th Cir. 1994))); Lasko v. Holt, 334 F. App’x 474, 477 (3d Cir.

2009) (concluding that the inmate-petitioner’s retaliation claim must fail because

sufficient evidence supported the DHO’s determination).

III. CONCLUSION

For the foregoing reasons, the Court concludes that Petitioner was accorded

all of his due process rights under Wolff and that there was some evidence supporting

the decisions made by the DHO. Accordingly, Petitioner’s § 2241 petition (Doc.

No. 1) and motion to subpoena Unit Manager Clem to testify (Doc. No. 11) will be

denied. An appropriate Order follows.

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